Motion for Particulars in Action under Section 8 Denied
as Not Necessary Apotex Inc. v. Pfizer Canada Inc., 2014
FC 1186 Drug: eletriptan hydrobromide Motion for Reply Evidence Granted in Part Leo Pharma Inc. v. Teva Canada Limited,
2014 FC 1241 Drug: calcipotriol and betamethasone dipropionate Breach before the Registrar of Trademarks can be Cured
by a Proceeding in Court Medos Services Corporation et al. v. Ridout
and Maybee LLP, 2015 FCA 77 This is an appeal of a decision found here. Health Canada is seeking feedback from stakeholders regarding their
information needs about therapeutic products as part of Health
Canada's Regulatory Transparency and Openness Framework. The
consultation is open until May 25, 2015. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
PATENTS
Pfizer brought a motion in an action brought pursuant to section 8
of the Patented Medicines (Notice of Compliance)
Regulations seeking to strike particular paragraphs of
Apotex's Statement of Claim or in the alternative, particulars
of those paragraphs. The impugned paragraphs related to the nature
of the damages claimed, the type of loss allegedly suffered by
Apotex and whether the amount claimed exceeded $50,000 as required
by the Federal Courts Rules.
The Court began by noting that statements by Pfizer that it cannot
understand the case against it are "surprising" because
it is a Defendant in at least one other proceeding with a similar
Statement of Claim and in which no similar motion was brought by
Pfizer.
The Court held that particulars of the damages claimed need not be
provided because damages pursuant to section 8 are evolving.
Further, these damages are a statutory remedy and the Courts have
described the scope of these damages, and therefore Pfizer does not
require particulars. The Court agreed with Pfizer that it is
necessary to plead that damages greater than $50,000 are being
claimed but the Court granted Apotex relief from this requirement
and held that the action shall proceed on the basis that damages
will exceed $50,000. Costs were awarded to Apotex in a fixed amount
to be paid forthwith.
This is an appeal from the decision of a Prothonotary, denying
leave to file reply evidence in a proceeding pursuant to the
Patented Medicines (Notice of Compliance) Regulations. The
Court noted that the Prothonotary was satisfied that Leo Pharma
could not have anticipated the evidence filed by Teva, that filing
the proposed reply evidence would not cause substantial or serious
prejudice to Teva, and that Leo Pharma was not splitting its case.
However, the Prothonotary was not persuaded that the reply evidence
would assist the Court or serve the interests of justice. The
Prothonotary held that sur-reply by Teva would then be permitted,
which would result in the potential for further motions.
The Court noted that the standard on a discretionary decision of
the Prothonotary is whether the decision was clearly wrong, as
being based on a wrong principle or a misapprehension of the
facts.
Two paragraphs in an affidavit were the subject of the motion. The
Court found no reason to interfere with the decision of the
Prothonotary with respect to one paragraph because Leo Pharma
should have anticipated the issue. However, the Court found that
the Prothonotary erred with respect to the second paragraph. The
Court held that because Leo Pharma was taken by surprise, reply was
fair. The Court indicated that the Prothonotary should address the
schedule and whether sur-reply was necessary.TRADEMARKS
The Court of Appeal noted that the first issue to be considered
was whether a breach of natural justice that may have occurred
before the Registrar of Trademarks would have been cured by a
proceeding in the Federal Court. The Court of Appeal found no error
in the Court's determination that a breach of notice and the
right to be heard by the Registrar can be addressed in an appeal
with new evidence under section 56 of the Trade-marks Act.
The issue therefore became whether the breach was in fact cured by
the appeal. The Court of Appeal held that the argument made in
support of the submissions that the breach was not cured was based
on a mistaken belief that the burden of proof is lower before the
Registrar as compared to the Court. The Court of Appeal also agreed
with the Court regarding the evidence of use and the reliance on
foreign correspondence. The appeal was dismissed.OTHER INDUSTRY NEWS
Health Canada is holding a Consultation on the Amendments to the Food and
Drugs Act: Guide to New Authorities (power to require &
disclose information, power to order a label change and power to
order a recall). The consultation is open for comment until
June 8, 2015.
Health Canada is holding a consultation on the Release of Draft (Step 2) International Conference
on Harmonisation of Technical Requirements for the Registration of
Pharmaceuticals on Human Use (ICH) Guidance: M8 - Electronic Common
Technical Document: Implementation Guide. The consultation is
open for comment until May 15, 2015.
The Competition Bureau is seeking input on its first
three-year Strategic Plan. Comments must be received no later
than April 10. 2015.