Canada: Federal Court Reissues Its Original Decision To Award Section 8 Damages After The Federal Court Of Appeal Held The Original Decision Relied On Inadmissible Hearsay Evidence (Intellectual Property Weekly Abstracts Bulletin — Week of June 5, 2017)

Patent Decisions

Federal Court Reissues its Original Decision to Award Section 8 Damages After the Federal Court of Appeal Held the Original Decision Relied on Inadmissible Hearsay Evidence
Teva Canada Limited v. Pfizer Canada Inc., 2017 FC 526

The Federal Court has reaffirmed and reissued its original decision awarding section 8 damages to Teva following a redetermination that was ordered by the Federal Court of Appeal.

The original decision (2014 FC 248, our summary here) and judgment (2014 FC 634, our summary here) provided that Teva should be awarded section 8 damages for being kept out of the market for selling venlafaxine due to an unsuccessful application brought pursuant to the PM(NOC) Regulations.

On appeal, the Federal Court of Appeal ruled that inadmissible hearsay evidence was relied upon and remitted the decision back to the Federal Court (2016 FCA 161). The key issue for the redetermination was whether in the hypothetical world Ratiopharm (Teva) would have had and could have had access to sufficient quantities of venlafaxine at the relevant time.

On the redetermination, counsel to Wyeth (Pfizer) objected to additional evidence that was not previously objected to as hearsay evidence at trial or on appeal. The Court did not allow the objection, holding that the objection should have been made at first instance.

Therefore, after reviewing the evidence in the record, the Court affirmed that there was sufficient admissible evidence that showed on a balance of probabilities that Ratiopharm (Teva) would and could have entered and supplied the generic market at the start of the section 8 damages period. Since the damages originally awarded had already been paid by the Defendant, the Court only reaffirmed the original judgment and awarded costs.

Motion to Amend Dismissed in Respect of the Contested Amendments
Teva Canada Limited v. Janssen Inc., 2017 FC 434

The Court dismissed the Plaintiffs by Counterclaim's motion to amend their statement of defence and counterclaim in respect of the contested amendments. The underlying proceeding is an action by Teva to recover from Janssen and others damages pursuant to section 8 of the Patented Medicine (Notice of Compliance) Regulations. The Court was not satisfied that the contested amendments had a reasonable prospect of success, but permitted the other proposed amendments, which were agreed to as between the parties.

Copyright Decisions

Appeal of Order Refusing to Grant Default Judgment Allowed
Canadian Private Copying Collective v. Redpact Impex Inc., 2017 ONSC 3038

The Ontario Superior Court allowed an appeal from the order of motion judge, wherein he declined to grant default judgment to the plaintiff. The Plaintiff had commenced this action against a number of Defendants for failure to remit private copying levies to the Plaintiff following the sale or disposition of blank media, as required under the Copyright Act. Two of the Defendants had failed to defend the claim and were noted in default. The motion judge declined to award default judgment since fraud was being asserted and that the plaintiff ought to have to satisfy the court by way of oral evidence, both of the quantity of media and that they were, in fact, blank disks.

The Ontario Superior Court concluded that the motion judge erred in not granting default judgment. First, the Court did not see any pleading of fraud in the claim, nor was it aware of any authority that distinguishes fraud from the effect of deemed admissions contained in the default proceedings. Second, the Court noted that there was an express pleading of the quantity of media involved, and of the fact that the media were blank. The Court found no reason why the Plaintiff should be required to separately establish those allegations of facts through a trial.

Supreme Court Updates

Apotex Inc. v. AstraZeneca Canada Inc. et al. (F.C.) (Civil) (By Leave) (37478)

The Supreme Court dismissed Apotex's application for leave to appeal from the judgment of the Federal Court of Appeal in 2017 FCA 9 (our summary here).

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