TEVA CANADA LIMITED Appellant v. PFIZER CANADA, 2015 FCA 280

Date: 20151208 Docket: A-154-15 Citation: 2015 FCA 280 CORAM: NOËL C.J. NADON J.A. STRATAS J.A. BETWEEN: TEVA CANADA LIMITED Appellant and PFIZER CANADA INC., PFIZER INC., PFIZER IRELAND PHARMACEUTICALS, and PFIZER PRODUCTIONS INC. Respondents Heard at Ottawa, Ontario, on December 8, 2015. Judgment delivered from the Bench at Ottawa, Ontario, on December 8, 2015. REASONS FOR JUDGMENT OF THE COURT BY: STRATAS J.A. Date: 20151208 Docket: A-154-15 Citation: 2015 FCA 280 CORAM: NOËL C.J. NADON J.A. STRATAS J.A.

BETWEEN: TEVA CANADA LIMITED Appellant and PFIZER CANADA INC., PFIZER INC., PFIZER IRELAND PHARMACEUTICALS, and PFIZER PRODUCTIONS INC. Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on December 8, 2015). STRATAS J.A. [ 1 ] This is an appeal from the Federal Court ( per Strickland J.) ( 2015 FC 306 ), who dismissed an appeal from the order of Prothonotary Aronovitch dated August 12, 2014.

The Prothonotary dismissed Teva Canada Limited’s motion to strike certain paragraphs in the respondents’ statement of defence and counterclaim. [ 2 ] Before us, Teva emphasized that the Federal Court erred in law in failing to consider this Court’s decision in AstraZeneca Canada Inc. v. Apotex Inc. , 2013 FCA 77 ( Omeprazole ). In our view, there is uncertainty regarding the state of the law as expressed in

that case and other cases and also uncertainty regarding the

interpretation of

section 8 of the Patented Medicine (Notice of Compliance) Regulations , SOR 93-133 as amended; this uncertainty suggests that Teva’s motion to strike should not have been granted. [ 3 ] Put another way, both the Prothonotary and the Federal Court held that the issues before them were not plainly and obviously devoid of merit and so they declined to grant the motion to strike. We decline to interfere with that finding. [ 4 ] Accordingly, despite Mr. Norrie’s able submissions, we shall dismiss the appeal with costs. “David Stratas” J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-154-15 APPEAL FROM AN ORDER OF THE HONOURABLE MADAM JUSTICE STRICKLAND DATED MARCH 11, 2015, DOCKET NO. T-2280-12 STYLE OF CAUSE: TEVA CANADA LIMITED v. PFIZER CANADA INC., PFIZER INC., PFIZER IRELAND PHARMACEUTICALS, and PFIZER PRODUCTIONS INC. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: December 8, 2015 REASONS FOR JUDGMENT OF THE COURT BY: NOËL C.J. NADON J.A. STRATAS J.A. DELIVERED FROM THE BENCH BY: STRATAS J.A.

APPEARANCES : Bryan Norrie Daniel Hynes For The Appellant Orestes Pasparakis Kristin Wall For The Respondents SOLICITORS OF RECORD : Aitken Klee LLP Ottawa, Ontario For The Appellant Norton Rose Fulbright Canada LLP Toronto, Ontario For The Respondents