Teva Canada Limited v Pfizer Canada Inc., 2017 FC 957 (Zinn J).
Teva and Pfizer have been in litigation regarding Pfizer’s 1998 patent on its Viagra (sildenafil citrate) pharmaceutical since 2007. In 2012, the Supreme Court of Canada held that the patent was invalid for inadequate disclosure. Now, Teva seeks compensation for damages it suffered as a consequence of not being able to market its own sildenafil citrate tablets.
Subsequent to Teva’s Reply to Pfizer’s Statement of Defence and Counterclaim and subsequent Examinations for Discovery, Pfizer wished to amend its Statement of Defence and Counterclaim.
Pfizer wrote to Teva requesting consent to amend its pleadings and providing Teva with copies of both the old and new Motion Records. Teva responded by granting the request. Teva further noted that the new Motion Record included confidential transcripts which ought not to have been included. However, since it granted the request for consent, Teva felt that the content of the Motion Record was a moot issue.
Notwithstanding the consent, “Pfizer, for reasons that appear to be in the nature of some tactical advantage, filed its motion.” Teva responded and brought a cross-motion to amend the Motion Record to remove the allegedly confidential information. The whole process ultimately cost the parties and the Court great expense, including an urgent case management conference and three hours for the hearing of the motions, all of which the Court notes occupied the time of four counsel, a Court Registrar, and the Judge.
When Justice Zinn asked Pfizer’s counsel why it had brought a motion for leave despite having consent, Pfizer provided no satisfactory response. The Court found that this was an “abuse of this Court’s processes and procedures, and unnecessary.”
The Court also found that Teva’s withdrawal of its previous “unequivocal and unconditional consent” was a waste of the Court’s time.
Justice Zinn stated that his impression of this ordeal is best captured in the line “A plague o’ both your houses” from Romeo and Juliet. He further noted that his “only regret is that I am unable to order both parties to pay costs to the Court for its losses.”
The Court ordered that Pfizer’s amended Statement of Defence be accepted for filing and that all documents filed by either of the parties relating to both motions be returned to the parties and that the Judge’s copy be destroyed.
Read the case here – http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/300801/index.do
Prepared by Scott Tremblay.