Case: Teva Canada Limited v Pfizer Canada
Inc, 2014 FCA 138 Drug: VIAGRA (sildenafil citrate) Nature of case: Section 8 damages proceeding
under Patented Medicines (Notice of Compliance)
Regulations Date of decision: May 27, 2014
Norton Rose Fulbright were successful in convincing the Federal
Court of Appeal to uphold the judgment of Mr. Justice de Montigny
determining that punitive and exemplary damages are not available
under section 8 of the Patented Medicines (Notice of
Compliance) Regulations, SOR/93-133 (the
Regulations). Accordingly, the
court struck the related paragraphs from the statement of claim of
Teva Canada Limited (Teva) in the action brought
against Pfizer Canada Inc., Pfizer Inc., and Pfizer Ireland
Pharmaceuticals (collectively, Pfizer) for damages
in connection with its generic version of Pfizer's drug,
Following the dismissal of Pfizer's prohibition proceeding
by the Supreme Court in Teva Canada Limited v Pfizer Canada
Inc, 2012 SCC 60, Teva commenced an action claiming damages
and a variety of other relief including punitive and exemplary
damages in connection with its purported delayed market entry for
its Novo-Sildenafil product.
Pfizer successfully moved to strike Teva's statement of
claim before Madam Prothonotary Aronovitch; an appeal from her
decision was dismissed by Mr. Justice de Montigny, causing Teva to
bring the matter before the Court of Appeal. On both appeals,
Teva took the position that the inherent power of the courts to
award punitive and exemplary damages was not fettered by section 8
of the Regulations. Teva focused on that part of
subsection 8(4) which provides that the Court make any
order for relief by way of damages in respect of a generic
manufacturer's loss that the circumstances require.
Section 8 proceedings limited to compensatory relief
Writing for the Court of Appeal, Mr. Justice Mainville rejected
Teva's arguments holding that "punitive and exemplary
damages cannot be available when the statutory regime underlying
the claim explicitly or implicitly precludes them". The Court
reaffirmed that section 8 is a "complete code" or
"comprehensive scheme" for liability under the
Regulations and that its language displaces any inherent
jurisdiction to award punitive or exemplary damages, which are
neither "suffered" nor compensate a "loss" as
required by section 8.
Following a well-established line of authority, the Federal
Court of Appeal held that subsection 8(4) is limited to an award of
compensatory damages in respect of any losses referred to in
subsection 8(1) suffered during the relevant period. The
Court also rejected Teva's argument that subsection 8(5) could
support the punitive and exemplary relief sought holding that the
discretion created by subsection 8(5) is limited to the adjustment
of compensatory damages only.
Norton Rose Fulbright is a global legal practice. We provide
the world's pre-eminent corporations and financial institutions
with a full business law service. We have more than 3800 lawyers
based in over 50 cities across Europe, the United States, Canada,
Latin America, Asia, Australia, Africa, the Middle East and Central
Recognized for our industry focus, we are strong across all
the key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia,
Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South
Africa (incorporated as Deneys Reitz Inc) and Fulbright &
Jaworski LLP, each of which is a separate legal entity, are members
('the Norton Rose Fulbright members') of Norton Rose
Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein
helps coordinate the activities of the Norton Rose Fulbright
members but does not itself provide legal services to
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).