With Quantum of Damages Settled, Parties Unable to Agree
on Quantum of Costs or Calculation of Pre- and Post-Judgment
Interest in Section 8 Case Drug: venlafaxine In the Federal Court's earlier decision (summary here), the parties were instructed to attempt
to reach an agreement on the quantity of damages and costs in an
action for damages under section 8 of the PM(NOC)
Regulations. These supplementary reasons report that the
parties agreed on the damages accrued during the relevant period
(approximately $92 million), but were unable to agree on the
quantum of costs, on the calculation of prejudgment interest, or on
the rate of post-judgment interest. Teva was the successful party and was judged entitled to its
costs. It claimed costs of approximately $2 million, but in an
attempt to bring the matter to a close, requested a lump-sum award
of $1.8 million. Alternatively, Teva requested its costs be
determined at the upper level of Column IV, and include various
other costs and expenses for attendance at discoveries, motions,
witness meetings, travel and expert/fact witness fees. Considering
various objections made by Pfizer, the Court determined that this
was not an appropriate case for the Court to award a lump-sum; the
Court ordered the costs to be assessed, guided by the decisions in
Janssen-Ortho Inc. v. Novopharm
Ltd. and Apotex Inc. v. H Lundbeck A/S.
Notably, the Court directed that Teva was to be entitled to its
costs at the upper level of Column IV, among other things. With respect to prejudgment interest, the date from which the
prejudgment interest ran was determined in the Court's earlier
decision; the issue here was on what sum is the interest
calculated. The Court held that prejudgment interest on the damage
award is calculated as follows: "First, the interest owed from
the beginning of the Relevant Period to the end must be calculated
from the beginning of each month on the basis of the damages
accruing that month and second, the interest on the total amount of
the award outstanding at the end of the Relevant Period must be
calculated from the end of the Relevant Period to the date of
judgment." With respect to post-judgment interest, it was accepted that it
accrues on the money owed including costs and pre-judgment
interest, from the date of the final judgment at the post-judgment
interest rate. The Court held that section 127(1) of the Courts
of Justice Act governs post-judgment interest in this case,
which was determined to be 3% at the time. Causes of action found against Pfizer for a BC
class-action certification based on the VIAGRA®
patent Pfizer had a Canadian patent for VIAGRA® that was found to
not comply with the disclosure requirement by the Supreme Court in
an earlier PM(NOC) proceeding (Teva Canada Ltd. v. Pfizer Canada Inc.,
2012 SCC 60). This finding was later applied on summary
judgment in favour of Apotex (Apotex v. Pfizer Ireland Pharmaceuticals,
2012 FC 1339) and upheld on appeal (Pfizer Ireland Pharmaceuticals v. Apotex
Inc., 2014 FCA 13). The plaintiff in this proceeding now seeks to certify a class
action against Pfizer. The plaintiffs allege that Pfizer wrongfully
obtained and relied on a patent, which inflated the price of
VIAGRA® by delaying the introduction of competing generic
versions. The Court found that subsection 55.2(4) of the Patent
Act and the PM(NOC) Regulations do not govern the
rights of actions of consumers. So it was held that while the
statutes do not create a right of action for consumers, neither do
they bar an action by consumers if the conduct that was in breach
of statute is also relevant to a common law cause of
action. In the result, the Court found a cause of action for the claims
to unlawful interference with economic relations and for unjust
enrichment. The other s.4(1) requirements for certification
still need to be addressed in a further application. The BLG Life Sciences Group has published
LIFESIGNS: Life Sciences Legal Trends in Canada, a Report on
Intellectual Property, Litigation, Corporate Commercial legal
trends and industry developments in Canada. The content of this article is intended to provide a general
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about your specific circumstances.
NOC Cases
Teva Canada Ltd. v. Pfizer Canada Inc.,
2014 FC 634
Teva was awarded approximately $32 million in prejudgment
interest, 3% post-judgment interest on approximately $124 million
(the sum of damages and pre-judgment interest), and its assessed
costs, which are to be awarded at the rate of 3% from the date of
judgment until payment.Class-actions
Low v. Pfizer Canada
Inc., 2014 BCSC 1469
The only issue on this application was whether the plaintiff's
claim discloses a cause of action for the purposes of
certification. The three causes of action pleaded were:
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