Pfizer Canada Inc., et al. v. Teva Canada Limited

(Federal Court) (Civil) (By Leave)

(Sealing order)


Commercial law - Contracts, Interpretation, Intellectual property, Patents, Medicines.


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Commercial law — Corporations — Amalgamation — Contracts — Interpretation — Intellectual property — Patents — Medicines — Plaintiff company in action for damages under s. 8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, consisting of an amalgamation of generic drug companies — Motions for summary judgment brought based on agreement between defendants and one of the plaintiff’s constituent companies — How is the law of amalgamation to be reconciled with the interpretation of contractual provisions? — How are courts to interpret a general release covering future litigation that was unknown to the parties at the time the release was given?

The applicant Pfizer Canada Inc. is a pharmaceutical company authorized to sell sildenafil citrate tablets in Canada under the name VIAGRA®, and the other applicants are affiliated companies (collectively, “Pfizer”). The respondent Teva Canada Limited (“Teva”) is a pharmaceutical company which was called Novopharm Limited before February 2010. In August 2010, Teva and ratiopharm Inc. (“ratiopharm”), along with a few other companies, amalgamated under s. 185 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44. The amalgamated company continued as Teva.

In 2012, following the dismissal of an application by Pfizer for a prohibition order relating to Teva’s generic version of VIAGRA®, Teva-Sildenafil (formerly Novo-Sildenafil), Teva brought an action against Pfizer for damages under s. 8 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, seeking to recover the losses it allegedly suffered from Teva-Sildenafil’s delayed entry into the market. Pfizer brought a motion for summary judgment, on the basis that Teva’s action was barred by an agreement between Pfizer and ratiopharm Inc., entered into before the amalgamation, settling proceedings related to ratiopharm’s generic version of VIAGRA®, ratio-Sildenafil. Teva also brought a motion for summary judgment, alleging that use of the agreement to preclude the action was not a genuine issue for trial.