Cases:Teva Canada Limited v. Pfizer Canada
Inc. et al. Application for leave to appeal from the judgment
of the Federal Court of Appeal 2014 FCA 138 refused with costs
Drug: VIAGRA® (sildenafil)
Nature of cases: Appeal from a pleadings motion
in which Teva's claim for punitive damages under Section 8 of
the PM(NOC) Regulations was struck
Date of decisions: November 13, 2014
The Supreme Court of Canada has refused Teva's application
for leave to appeal the decision of the Federal Court of Appeal
which had upheld an order striking its plea for punitive damages in
an action pursuant to section 8 of the Patented Medicines
(Notice of Compliance) Regulations (the "PM(NOC)
Teva's plea for punitive damages was made in the context of
a section 8 action claiming damages for Teva's alleged delayed
market entry with its generic version of VIAGRA® (sildenafil).
Pfizer moved to strike the plea and was successful before a
prothonotary of the Federal Court who held in part that Teva's
claim for punitive damages was "an impermissible attempt to
graft a civil punishment or fine onto a complete code of statutory
damages." Through two rounds of appeal, a Judge of the
Federal Court and three judges of the Federal Court of Appeal
agreed with the prothonotary, holding that Teva's pleading was
properly struck. With the announcement, the issue has been
definitively settled: punitive damages are not available in an
action commenced pursuant to section 8 of the PM(NOC)
The Federal Court of Appeal decision
The FCA Judgment was based on long-standing authority that has
recognized section 8 as a compensatory scheme regulating
compensation for "losses suffered" by a "second
person" during the defined period. The Federal Court of Appeal
considered that punitive damages, by their nature, are entirely
inconsistent with a regime designed to compensate for losses
suffered and held that Teva's claim was properly struck.
The Supreme Court will weigh in on the legal framework for the
quantification of section 8 damages having recently granted leave
to appeal the Federal Court of Appeal judgment in
Sanofi-Aventis et al. v. Apotex Inc. 2014 FCA 68
("Ramipril"). Teva had in fact written to the
Supreme Court after leave to appeal was granted suggesting that its
appeal on the question of the availability of punitive damages
could be heard together with that appeal. Teva's invitation was
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