Pfizer Canada Inc v Teva Canada Ltd 2015 FCA 257 Gauthier JA: Webb, Near JJA
2,163,446 / VIAGRA / sildenafil
In this decision the FCA held that a pre-amalgamation settlement agreement entered into by one of two subsequently amalgamated entities does not bar an action by the amalgamated entity based on pre-amalgamation events affecting the other entity.
In 2006-08, Teva (then Novopharm) and ratiopharm both filed ANDS for sildenafil. Pfizer
sought orders of prohibition in respect of both under s 6 of the PM(NOC) Regulations. Pfizer and
ratiopharm settled, and under the terms of the Agreement ratiopharm agreed not to launch until
expiry of the patent. Teva and ratiopharm then amalgamated. The s 6 action against Teva proceeded,
and Teva ultimately prevailed: Viagra 2012 SCC 60. The Minister granted an NOC in respect of
Teva-sildenafil and Teva then brought a s 8 action for damages for having been keep out of the
market by the NOC proceeding. Teva did not claim any damages relating to ratio-sildenafil, but
only in respect of Teva-sildenafil. Pfizer brought a motion for summary judgment on the basis that
Agreement entered into with ratiopharm barred the action by Teva. Pfizer acknowledged that
when the Agreement was entered into, the parties did not intend to cover Teva’s product, but it
argued that the scope of the Agreement changed as a result of the amalgamation -. Not
very surprisingly, the FCA, affirming O’Keefe J, held that the Agreement only bars Teva from
seeking s 8 damages in respect of ratio-sildenafil, and Teva's action in respect of Teva-sildenafil can proceed: .