Apotex Inc. v. Pfizer Ireland Pharmaceuticals 2016 ONSC 7193

CITATION: Apotex Inc. v. Pfizer Ireland Pharmaceuticals 2016 ONSC 7193

DIVISIONAL COURT FILE NO.: 420/16

DATE: 20161118

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: APOTEX INC. v. PFIZER IRELAND PHARMACEUTICALS and PFIZER CANADA INC.

BEFORE: NORDHEIMER J.

COUNSEL: R. Sutton, R. Agarwal & S. Taylor, for the moving parties/defendants H. Radomski & N. De Luca, for the responding party/plaintiff

HEARD at Toronto: written submissions

E N D O R S E M E N T

[1] The moving parties/defendants seek leave to appeal from the decision of Lederman J. dated August 8, 2016 in which the motions judge dismissed, with two exceptions, Pfizer’s motion to strike out various claims, made by Apotex, on the grounds that they do not disclose a reasonable cause of action, pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] Before turning to the motion itself, two preliminary issues need to be addressed. The first is that the factum filed on behalf of Pfizer does not comply with r. 4.01(1), in that it does not meet the standard of “characters used shall be of at least 12 point”. While I might have rejected the factum and required it to be reformatted and refiled, I chose not to do so, because that would only further delay this matter. However, ignoring the requirements of the Rules, regarding the proper format for documents, as a way, apparently, of increasing the content without running afoul of the reason why the court has page limits, is not to be countenanced. Counsel should also be aware that the Divisional Court office has standing instructions to refuse to accept for filing any factum that does not comply with the Rules of Civil Procedure in this, or any other, aspect.

[3] The second is that Pfizer filed a reply factum. The only permitted basis upon which a reply factum may be filed is contained in r. 61.03.1(11) that reads:

If the responding party’s factum raises an issue on which the moving party has not taken a position in the moving party’s factum, that party may serve a reply factum.

[4] As I noted in Apotex Inc. v. Schering Corporation, 2016 ONSC 5456 at para. 3, the right to file a reply factum is very limited. As the rule makes clear, it applies only where a new issue is raised by the responding party. Pfizer’s reply factum does not satisfy the requirement set out in r. 61.03.1(11). It merely reargues matters that either were, or ought to have been, canvassed in its main factum. As Gillese J.A. said in Dennis v. Ontario Lottery and Gaming Corp. (2012), 2012 ONCA 368, 110 O.R. (3d) 318 (C.A.) at para. 8:

A reply factum should not be permitted where it merely confirms or reinforces points already made or which could have been made in the moving party’s initial factum.

As a result, I have given scant consideration to the contents of the reply factum.

[5] Turning to the motion itself, in this action Apotex claims damages from Pfizer arising from Pfizer’s patent for Viagra. In 2004, Apotex wished to manufacture a generic version of Viagra, but Pfizer successfully prevented Apotex from doing so by exercising rights that it had under regulations passed pursuant to the Patent Act, R.S.C. 1985, c. P-4. In 2012, Pfizer’s patent for Viagra was held to be invalid. Consequently, Apotex became free to manufacture its generic version. Apotex’s claim for damages arises from the resulting delay in being able to market its generic version.

[6] Pfizer moved to strike Apotex’s claim in a number of respects. It was successful regarding two claims, but was unsuccessful regarding the balance of the claims. Pfizer’s position is, essentially, that the Patent Act provides “a complete code” for any remedies arising from a situation such as this one and, consequently, Apotex’s attempt to advance common law claims outside of the remedies provided by statute cannot possibly succeed and ought to be struck out.

[7] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[8] The defendants rely on both of these tests for their request that leave to appeal be granted. In terms of deciding this motion, I note that, if leave is granted, r. 62.02(7) expressly refers to the judge giving “brief” reasons. There is no corresponding requirement to give reasons if leave to appeal is refused. However, it has become the practice of this court to also give reasons when refusing leave to appeal. In either event, the reasons given should still be brief. The reasons should address the issue of whether either of the tests for leave to appeal have been met, and why or why not, but nothing more (save, when granting leave to appeal, setting out the precise issues for which leave to appeal has been granted).

[9] In my view, neither test for leave to appeal is met in this case. First, it is not clear that there are conflicting decisions in Ontario regarding the issues in play in this case.[^1] However, it is not necessary for me to analyze all of the cases to which the parties have referred in order to come to a definitive conclusion on that aspect of the first test. One reason is that not all of the asserted “conflicting” cases are from Ontario. Another, and more important, reason is that, even if there are conflicting Ontario decisions, I am of the view that it is not desirable for leave to appeal to be granted.

[10] This is a pleadings motion. While parties argue over the state of the pleadings, the action itself does not proceed. Delay results and costs are increased. Those consequences directly conflict with the central goal of the Rules of Civil Procedure which is to ensure “the just, most expeditious and least expensive determination of every civil proceeding” (r. 1.04(1)). Accordingly, it should be the rare or unusual case where a pleadings issue ought to warrant the time and attention of a reviewing court by way of an appeal. That is especially so when the pleadings issue would not, in any event, be the end of the claim or the defence, even if resolved in the moving party’s favour.

[11] In terms of the second test, I do not have good reason to doubt the correctness of the motion judge’s order. The motion judge correctly stated the test to be applied on a motion to strike and he correctly applied that test. It is evident from the authorities cited by both sides, that there is confusion or uncertainty whether the “complete code” argument is sufficient to defeat claims of the type being advanced by Apotex here. It is certain not “plain and obvious” that the claims cannot succeed.

[12] Further, and in any event, the issue of whether the claims should be permitted to proceed does not raise an issue of such importance that, in my opinion, leave to appeal should be granted. I repeat that this is a pleadings motion. It makes no ultimate determination of whether Apotex will succeed on its claims. The submissions of Pfizer regarding why matters of importance are raised by the motion judge’s order essentially ignores that fundamental reality. All that the motion judge’s order does is permit those claims to proceed to a full trial, and it is only then that a determination of the merits of Apotex’s claims will be made. In addition, and as other cases have found, the “novelty” of a claim is often only properly analyzed and assessed after a trial, with a full evidentiary record. Finally, and as I said above, as a general proposition the court’s time, and the parties’ time and money, ought not to be spent on virtually endless arguments over the state of a party’s pleadings.

[13] Consequently, the motion for leave to appeal is dismissed.

[14] The parties did not provide their submissions on costs, apparently over some concern regarding possible settlement offers. Normally, costs submissions should be part of the material filed on a motion for leave to appeal since these matters are now dealt with in writing. That being the case, if the parties cannot agree on the disposition of the costs, they may make brief written submissions. Apotex shall file its written submissions within fifteen days of today and Pfizer shall file their submissions within ten days thereafter. No reply submissions are to be filed without leave of the court. No party’s submissions shall exceed five pages in length.

NORDHEIMER J.

DATE: November 18, 2016

[^1]: In order for decisions to be conflicting under this test, the decisions must be from Ontario courts: International Formed Tubes Ltd. v. Ohio Crankshaft Co. et al.: Travelers Indemnity Co., Third Party (1965), 1964 251 (ON SC), 1 O.R. 621 (H.C.J.).