COURT FILE NO.: CV-14-514915
DATE: 20210927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
APOTEX INC.
Plaintiff
- and -
PFIZER IRELAND PHARMACEUTICALS, PFIZER INC., PFIZER EXPORT COMPANY, PFIZER GLOBAL SUPPLY, PFIZER OVERSEAS LLC, PFIZER PGM AND PFIZER CANADA ULC
Defendants
AND BETWEEN:
PFIZER CANADA ULC AND PFIZER PRODUCTS INC.
Plaintiffs by Counterclaim
- and -
APOTEX INC.
Defendant by Counterclaim
Harry. B. Radomski, Nando De Luca and Jerry Topolski, lawyers for the Plaintiff
Orestes Pasparakis, Daniel Daniele, and David Yi, lawyers for the Defendants
Orestes Pasparakis, Daniel Daniele, and David Yi, lawyers for the Plaintiffs by Counterclaim
Harry. B. Radomski, Nando De Luca and Jerry Topolski, lawyers for the Defendant by Counterclaim
HEARD: September 10, 2021
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] In or around mid-May 1994, the defendant Pfizer Island Pharmaceuticals (“Pfizer”) applied and ultimately obtained a Canadian Patent No. 2,163,446 (the “446 Patent”) for the use of sildenafil citrate in the treatment of erectile dysfunction. Sildenafil citrate is the active ingredient in Viagra, a drug manufactured, marketed and sold by Pfizer for the last few decades.
[2] Pfizer then filed a Form IV listing the 446 Patent on the Health Canada Registrar in relation to Viagra. The plaintiff Apotex Inc. (“Apotex”) subsequently sought to market a generic drug version of Viagra in Canada, and served Pfizer with a Notice of Allegation alleging that the 446 Patent was invalid. Litigation ensued in the Federal Court (including similar proceedings brought by other generic drug companies), and Apotex was ultimately successful in obtaining an order invalidating the 446 Patent pursuant to section 60 of the Patent Act R.S.C. 1985 c.P4. As a result, and under the terms of the Patent Act, Pfizer’s 446 Patent was declared and remains void ab initio.
[3] Apotex has commenced this proceeding seeking, inter alia, treble damages and double costs from Pfizer pursuant to various statutory and common law causes of action (including the provincial Statute of Monopolies and the common law torts of conspiracy, unjust enrichment and nuisance). The underlying basis for Apotex’s claims is that the steps Pfizer took to obtain, list and enforce its 446 Patent rights were all unlawful and resulted in Pfizer obtaining, operating and benefitting from an illegal monopoly.
[4] Relying upon the recent decision of Justice Schabas in Apotex Inc. v. Eli Lilly Canada Inc. 2021 ONSC 1588 (the “Zyprexa decision”), Pfizer (on behalf of all defendants) brings a motion seeking summary judgment dismissing this proceeding in its entirety. Of note, Pfizer conceded at the outset of the hearing of its motion that in the event its request for summary judgment was granted, its counterclaim would prove to be moot, and Pfizer would agree to a dismissal of its counterclaim as well.
[5] Pfizer’s motion was argued before me during a full day hearing. At the conclusion of the hearing, I took my decision under reserve.
Summary Judgment
[6] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant a summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence.” As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.
[7] In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment, the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the fact-finding powers set out in the 2010 amendments. The Court may only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and if summary judgment would be an affordable, timely and proportionate procedure.
[8] The overarching principle is proportionality. Summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case.
[9] As held in Sanzone v. Schechter 2016 ONCA 566, only after the moving party discharges its evidentiary burden of proving that there is no genuine issue requiring a trial for resolution does the burden then shift to the responding party to prove that its claim has a real chance of success. The Court must address the threshold question of whether the moving party discharges its evidentiary obligation to put its best foot forward by adducing evidence on the merits.
[10] Nothing in Hyrniak or the subsequent jurisprudence displaces the onus upon a party responding to a motion for summary judgment to “lead trump or risk losing.” The Court must assume that the parties have put their best foot forward and placed all relevant evidence in the record. If the Court determines that there is a genuine issue requiring a trial, the inquiry does not end there and the analysis proceeds to whether a Court can determine if the need for a trial may be avoided by use of its expanded fact-finding powers.
[11] As recently held by the Court of Appeal for Ontario in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, when hearing a motion for summary judgment, the Court must follow the analytical process set out in Hryniak and carefully analyze all the evidence relied upon by a responding party in his/her efforts to show the presence of a serious issue requiring a trial. First, the Court must consider whether there is a genuine issue requiring a trial based on the record alone and without utilizing the enhanced fact-finding powers in Rule 20.04 (2.1) of the Rules of Civil Procedure.
[12] If the Court finds the presence of a genuine issue requiring a trial on the record alone, then the second question is whether the need for a trial can be avoided by using the said fact-finding powers. In his recent decision Oxygen Working Capital Corp. v Mouzakitis 2021 ONSC 1907, Justice Myers posed the following (non-exhaustive) questions for the Court to consider at the second stage:
a) Will making findings of fact on the evidence before the court provide a fair and just result as compared to a mini-trial or a trial?
b) Does the material before the court illuminate the factual issue sufficiently to allow the judge to make findings of fact and credibility?
c) Is there something missing that is needed for basic fairness despite the fact that the parties chose not to put that evidence forward?
d) Do considerations of the litigation as a whole mandate some further process before making factual or credibility findings?
The scheduling of this motion
[13] In his Endorsement released on March 12, 2021, Justice Myers (who is case managing this action) adjourned the trial of this action originally scheduled for 20 days to commence on September 27, 2021, and permitted Pfizer to bring its motion for summary judgment. In coming to his decision, Justice Myers reviewed the then-recently released Zyprexa decision and held as follows:
“It seems to me that the concepts behind the doctrines of res judicata, issue estoppel, and abuse of process may be engaged here. If these issues of law have been conclusively decided against Apotex’s position, institutional concerns both as to legitimacy and resource allocation take on increased prominence.
Mr. Brodkin submits that on the facts, the case before Schabas J. differed from this case. The patent before Schabas J. had been found to have been valid until the Supreme Court of Canada changed the law and made the patent invalid. There is no or little fault on the patent holder trying to enforce its patent which was valid under the prevailing law at the time. Here, the patent was found to have been invalid on a normal patent law basis. Pfizer failed to adequately disclose its invention and the Supreme Court of Canada likened the situation to someone ‘gaming the system’.
I am not deciding the case today. But I am dubious that this is a distinction that makes any difference. First, Schabas J. found expressly that his ruling did not turn on the motive of the patent holder. Moreover, the validity of Pfizer’s patent had been upheld all the way up to the Supreme Court of Canada too. Although the Pfizer case may not have signaled a major doctrinal shift in the law, both lower courts had upheld the patent until the SCC held it to violate the statute. That must have been a change in the law as seen by the two lower courts.
This is the normal stuff of the law. One challenges a patent and can lose and lose on appeal and then finally win in the SCC. I cannot see that parsing the degree to which the SCC changed the law in invalidating a particular patent could make a difference to the interpretation of whether the generic drug compulsory licensing regulations are a complete code or to the interpretation of the pre-confederation statute.
Finally, and perhaps most significant, I asked Mr. Brodkin whether the factual distinction that he was making could be ascertained simply by reading the relevant SCC decisions. He agreed that this was likely the case. So, the factual issue that could arise, is not one that is likely to prevent summary resolution.
Mr. Pasparakis expressly submitted that if the case is resolved summarily on the foregoing bases, there would be major trial savings as it would no longer be necessary for Pfizer to mount defences based on the validity of a different patent that they assert and major accounting issues associated with proof of damages. I take this to mean that the counterclaim will be withdrawn if summary judgment is granted dismissing the claim. If that is not correct and a trial is still required on the counterclaim, counsel are to advise me forthwith.
I am satisfied that in light of the decision by Schabas J. a motion for summary judgment could very well resolve this case much more quickly and cheaply than a 20-day trial. Depending on the outcome, this case might be available to the Court of Appeal with Justice Schabas’s case. Inviting a 20-day trial to re-visit questions of law already decided against the plaintiff by this court does not strike me as apt based on the foregoing doctrinal, resource allocation, efficiency, and affordability concerns.
I am not finding that there is no serious issue requiring a trial. But I am four years further along in understanding these cases. Earlier submissions of great factual complexity seem to have been overstated or simply resolved with time. I have much less concern today about the risk of facts overwhelming the judge’s ability to resolve the issues summarily. But that will be for the judge who hears the motion to decide.”
[14] As found by Justice Myers, the issue for this Court to decide is whether the Zyprexa decision renders Apotex’s claims in this action as moot. It is therefore necessary to review the underpinning facts and Justice Schabas’ legal analysis in the Zyprexa decision to assess whether summary judgment ought to be granted in this proceeding.
The Zyprexa decision
[15] There is no dispute that the claims advanced by Apotex in the Zyprexa case are entirely consistent with the positions it takes in this proceeding, and in a number of other outstanding proceedings it has initiated against drug innovator companies over the last decade. In each of these proceedings, the main thrust of Apotex’s argument can be summarized as follows: if a drug innovator company (such as Pfizer) has excluded generic drug manufacturing companies (such as Apotex) out of the market due to a registered patent having subsequently been found invalid and void ab initio, Apotex is entitled to resulting common law and statutory damages.
[16] In the Zyprexa case, the drug in question was Olanzapine. Eli Lilly Canada Inc. (“Eli Lilly”) filed and obtained a patent for Olanzapine, which was marketed by Eli Lilly under the name Zyprexa.
[17] Litigation subsequently ensued between Apotex and Eli Lilly dealing with the alleged invalidity of the Olanzapine patent. Novopharm Limited (another generic drug company) also commenced its own action against Eli Lilly seeking relief similar to what was claimed by Apotex. Ultimately, Eli Lilly’s Olanzapine patent was held to be invalid (ie. void ab initio).
[18] Apotex then sued Eli Lilly in this Court seeking damages on essentially the same legal theories and causes of action advanced in this proceeding. Eli Lilly brought a motion for summary judgment before Justice Schabas seeking a dismissal of Apotex’s claims on two grounds. The first ground, namely that Apotex’s action was statute barred by reason of the provisions of the Limitations Act 2002 S.O. 2002 c.24, was rejected.
[19] However, with respect to the second ground, Justice Schabas found that to the extent Apotex was allegedly kept out of the market for the sale and manufacturer of its generic version of Olanzapine, this exclusion was a result of the operation of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (the “PM(NOC) Regulations”) and is therefore not actionable. This finding is summarized by Justice Schabas as follows:
“While I find that the action is not barred by the Limitations Act, 2002, I conclude that to the extent Apotex was kept out of the market, this was due to the operation of the PM(NOC) Regulations when Lilly was acting lawfully, pursuant to a patent issued in accordance with the Patent Act. In invoking the PM(NOC) Regulations Lilly relied on an existing patent which was presumed to be valid. Its actions were authorized by law, as Lilly was simply using the regulatory scheme established to address disputes over patents involving pharmaceutical drugs. The Patent Act and the PM(NOC) Regulations reflect a balancing of interests between protecting innovators and the public interest in allowing less expensive drugs to be available to the public. Patent law is “wholly statutory” and the Act and Regulations provide a complete code governing the issuance and use of patents, including available remedies when patents have been infringed and when they have been found to be invalid.
The monopolies claim, in my view, has not merit. When it was enacted almost 400 years ago, the English Statute of Monopolies specified that the prohibition on monopolies did not apply to patents for new inventions. This is also the case in the Ontario Statute of Monopolies. Further, even if the patent could have authorized an unlawful monopoly, as it has now been declared invalid and void ab initio, Lilly is deemed to have never been granted a licence, patent or monopoly that is prohibited by the Statutes of Monopolies.
I also conclude that Lilly has committed no wrongdoing that would give rise to liability under the Trademarks Act or at common law. Apotex led no evidence to support such claims other than the facts that Lilly sought and obtained a patent for Olanzapine, and then invoked the PM(NOC) Regulations as it was entitled to do when it held that patent. Lilly did not engage in any unlawful conspiracy or make any false or misleading statements.”
[20] In essence, Justice Schabas found that the scope of each the alleged wrongful acts on the part of Eli Lilly was authorized by the Patent Regime (ie. the Patent Act and the PM(NOC) Regulations), which operated as a complete code and excluded any additional claims under other statutes and/or at common law.
[21] In addition to dismissing Apotex’s action against Eli Lilly by operation of the Patent Regime being a complete code, for completeness of the exercise Justice Schabas also found each of the individual causes of action to be legally untenable.
Is the Zyprexa decision binding on this Court?
[22] There is no current appellate authority “on all fours” with the facts of this proceeding (or any of the similar proceedings commenced by Apotex against other drug innovator companies). Apotex has launched an appeal of the Zyprexa decision, and this Court understands that the appeal is currently scheduled to be argued in February 2022.
[23] Do the doctrines of stare decisis and/or judicial comity require this Court to follow its own prior (albeit recent) decisions? In Duggan v Durham Region Non-Profit Housing Corporation 2020 ONCA 788, the Court of Appeal for Ontario held as follows:
“I would also reject any applicability of the Carter decision on stare decisis to this case. In Carter, at para. 44, the Supreme Court discussed two circumstances where a court would not be bound by stare decisis: where a new legal issue is raised or ‘where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate.’ In this case, the Bondy-Rafael decision interpreting the same rule was decided after the Hryniak case in the Supreme Court. There was no basis for the courts below to ignore the doctrine of stare decisis.
The doctrine of stare decisis makes an important contribution to the cost-effective and efficient management of litigation by ensuring that a legal issue, including the interpretation of a legislative provision, regulation or rule, once decided, is not relitigated in the next case. In my view, the courts below erred in law by failing to treat the Bondy-Rafael case as binding.”
[24] As held in Allergan Inc. v. Canada (Minister of Health) 2021 FCA 308, the principle of judicial comity dictates that a decision by a court of the same jurisdiction is persuasive and should be given considerable weight. A court of the same jurisdiction should only depart from a prior decision “where a judge is convinced that the prior decision is wrong and can advance cogent reasons in support of this view.”
[25] In R. v. Scarlett 2013 ONSC 562, Justice Strathy (as he then was) held as follows:
“The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., 1954 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.”
[26] Apotex takes the position in resisting Pfizer’s motion for summary judgment that the Zyprexa decision, including Justice Schabas’ analysis of the Patent Regime being a complete code, is “manifestly wrong”, and thus the Zyprexa decision should not be followed as a matter of judicial comity.
[27] In assessing Justice Schabas’ finding that the Patent Regime operates as a complete code, I do not find the presence of any “change in circumstances” or “evidence that fundamentally shifts the parameters of the debate” in the case before me. The issue, squarely argued by Apotex, is whether this Court can arrive at the conclusion that the Zyprexa decision is clearly wrong. It is not enough to find that this Court would have come to a different, or slightly different, conclusion. The application of judicial comity requires that this Court be convinced that the Zyprexa decision is clearly wrong.
Is the Zyprexa decision clearly wrong?
[28] I have read Justice Schabas’ legal and factual analysis in detail. I cannot conclude that the Zyprexa decision is clearly wrong, and on the contrary I agree with it.
[29] Patent rights are entirely a creature of statute. The Patent Regime does not confer rights to consumers, and in my view these supposedly missing rights do not imply that common law causes of action can “fill in” any such gap.
[30] The Patent Regime explicitly authorizes all of the actions undertaken by Pfizer in applying for and ultimately obtaining the 446 Patent. It is the provisions of the Patent Regime itself that precluded Apotex from competing with Pfizer through the development and sale of generic drugs, and not by reason of any alleged wrongful act or omission on the part of Pfizer.
[31] While Apotex argues that Justice Schabas’ analysis exposes that he considered the patent to be “voidable” and not void ab initio, I do not share that view for the reasons discussed below. The salient jurisprudence relied upon by Apotex consists of several Rule 21 motions to strike, where only patently unmeritorious causes of action are ever weeded out, and typically with leave to amend granted even if they are. Those decisions do not embark upon a fulsome evidentiary and legal analysis of the merits of whether the Patent Regime operates as a complete code thereby excluding Apotex’s right to pursue any other statutory or common law causes of action and/or remedies.
[32] I echo Justice Schabas’ reliance upon the British Columbia Court of Appeal’s decision in Low v. Pfizer Canada Inc. 2014 BCCA 506 which held as follows:
“The Patent Regulatory Regime involves a balancing of interests through the implementation of legislative policy choices. As the Court stated in Teva v. Pfizer Canada Inc., [2012 SCC 60] the patent system is based on a quid pro quo. It provides an incentive for disclosing a new invention in the form of a limited monopoly, such that society can benefit from that knowledge. In the context of patented medicines, the notice of compliance system acts as an accountability mechanism. In Apotex Inc. v. Eli Lilly Canada Inc., the Federal Court of Appeal described the PM(NOC) Regulations (and s. 8 in particular) as ‘an attempt to strike a balance between the need for patent protection on the one hand and the timely entry of lower priced drugs on the market, on the other’ (at para. 18). In my view, it is not for this Court to upset the balance that Parliament has struck by expanding the scope of available remedies.”
[33] The Patent Regine provides specific remedies where a patent is subsequently found to be invalid. Parliament clearly considered the consequences of a finding of an invalid patent. Damages are available under section 8 of the PM(NOC) Regulations, but Apotex cannot claim the benefit of that section on the facts of this case. Such a result does not displace the conclusion that the Patent Regime operates as a complete code.
[34] I agree with Justice Schabas that to permit Apotex’s claims to run outside the Patent Regime would effectively disrupt the regime itself. As put in the Zyprexa decision, “exposing a party to liability for damages simply because it successfully obtained a patent and exercised its rights based on its presumptive validity would remove one of the key benefits of the patent regime, which exists to foster and encourage innovation by protecting inventions for the benefit of the inventor for a limited period of time.
[35] Apotex maintains, as it did in the Zyprexa decision, that Pfizer’s actions in applying for and ultimately registering the 446 Patent without adequately and/or properly disclosing its invention was rooted in an improper motive and carried out in bad faith. Not only was Pfizer’s application to list the 446 Patent on the register authorized by the Patent Regime, the 446 Patent was presumed to be valid at all times until it was set aside, and the PN(NOC) Regulations entitled Pfizer to explicitly rely upon that presumption of validity. Pfizer relies, properly in my view, upon the following comments of the Court of Appeal for Ontario in Harris v. GlaxoSmithKline Inc. 2010 ONCA 872:
“The motion judge agreed with GSK's submissions on this issue. At para. 86 of his reasons, he stated:
‘The resort to a NOC Proceeding is a part of the ordinary competition between innovators and generic manufacturers. The case law establishes that provided that there are no unlawful acts, an ordinary commercial transaction with the predominant purpose of advancing one's own economic interests does not constitute a conspiracy even though a party or a third party may suffer an economic loss. (Authorities omitted) And, at para. 89:
GSK is not a public authority, a non-government organization, a charity, or a not-for-profit organization. It is a business enterprise with the purposeful activity of making money, which activity is not wrongdoing. As alleged in Ms. Harris' statement of claim, all of GSK predominate purposes are connected to GSK advancing its own self-interest by making money, which is normal and a norm for for-profit enterprises. In my opinion, it is plain and obvious that Ms. Harris cannot establish an intent to injure simply from the fact that GSK continued to make money from her and from others by acting in its own self interest and availing itself of the statutory rights under s. 6 of the NOC Regulations to protect existing patents while exposing itself to the attendant statutory liability under s. 8 of the NOC Regulations.’
I agree with those statements by the motion judge and would simply add that even if GSK acted with bad intentions in bringing the NOC Proceedings, as Fleming points out, at para. 31 above, ‘there can be no liability when the defendant merely employs regular legal process to its proper conclusion’.”
[36] There is no evidence in the record before me that Pfizer took any steps other than employing the regular legal process set out in the Patent Regime to its conclusion. Ultimately, the 446 Patent was held to be invalid. That, in and of itself, does not render any of Pfizer’s actions unlawful or improper, even if the patent is held to be void ab initio.
[37] A patentee is granted rights which it may assert during the period that a patent is presumed to be valid. Apotex submits that Pfizer cannot be legally justified in asserting the 446 Patent as any such justification could only exist if the 446 Patent was valid, and since it was declared to be void ab initio, it was thus “never valid” in law. This argument appears to be circular. The 446 Patent was not “always and/or retroactively invalid” or wrongful. As Justice Schabas found, the declaration of a patent to be void ab initio “does not rewrite history” and “does not retrospectively make a patentee liable for acts that it had a right to take while the patent was extent”. In my view, this reasoning is sound. To hold otherwise would render the presumption of the validity - created by operation of law - to be of no force and effect.
[38] I thus do not find Justice Schabas’ legal and factual analysis to be manifestly wrong. As such, and applying the Zyprexa decision to the facts of this case, Apotex’s claims cannot succeed and Pfizer’s motion for summary judgment is granted.
[39] It may be that the Court of Appeal for Ontario comes to a different conclusion when the appeal of the Zyprexa decision is heard and released. Until then, and for the reasons expressed above, judicial comity requires Apotex’s claims to fail.
[40] Apotex’s claims, and Pfizer’s counterclaims, are dismissed.
Final Matters
[41] As I agree with Justice Schabas that the Patent Regime operates as a complete code, all of Apotex’s causes of action raised in this proceeding must be dismissed. However, for completeness of the exercise, I wish to briefly address the two additional common law causes of action advanced by Apotex in this proceeding which were not raised against Eli Lilly in the Zyprexa decision: unjust enrichment and nuisance.
[42] It is trite to state that the elements of unjust enrichments are threefold: (a) an enrichment to the defendant, (b) a corresponding deprivation to the plaintiffs, and (c) the lack of a juristic reason for the enrichment.
[43] There is no causal connection between Pfizer’s alleged enrichment and Apotex’s alleged deprivation, as there was no “transfer of wealth” from Apotex to Pfizer. Apotex did not contribute anything to Pfizer’s development of sildenafil citrate. More importantly, in addition to acting as a complete code, the Patent Regime is by definition a juristic reason justifying any potential enrichment on the part of Pfizer. How can Pfizer have unlawfully profited or benefited from any patent that was bestowed the presumption of validity by operation of law?
[44] With respect to Apotex’s claim for nuisance, it alleges that the Pfizer’s unlawful maintenance of the 446 Patent interfered with Apotex’s ability to put their manufacturing facilities to their “optimal use”, namely the manufacturing and sale of sildenafil citrate.
[45] Whether Apotex is pursuing the tort of private or public nuisance, both claims must fail. The tort of nuisance addresses conflicting disputes between property owners. There is nothing alleged to have been done on the part of Pfizer that substantially interferes with Apotex’s use and enjoyment of its property. The right to manufacture generic drugs is not a land right. Further, Apotex’s alleged inability to manufacture and sell one drug is clearly not a “substantial interference” with its overall operation.
[46] Accordingly, these additional causes of action are dismissed on their merits in addition to being precluded by reason of the Patent Regime being a complete code.
Costs
[47] I would urge the parties to exert the necessary efforts to try and resolve the costs of this motion and the action. If such efforts prove unsuccessful, they may serve and file written costs submissions, totaling no more than five pages including a Costs Outline, in accordance with the following schedule:
a) Pfizer may serve and file its written costs submissions within ten business days of the release of these Reasons; and
b) Apotex may serve and file its responding written costs submissions within ten business days of the receipt of the Pfizer’s written costs submissions.
Diamond J.
Released: September 27, 2021
COURT FILE NO.: CV-14-514915
DATE: 20210927
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
APOTEX INC.
Plaintiff
– and –
PFIZER IRELAND PHARMACEUTICALS, PFIZER INC., PFIZER EXPORT COMPANY, PFIZER GLOBAL SUPPLY, PFIZER OVERSEAS LLC, PFIZER PGM AND PFIZER CANADA ULC
Defendants
AND BETWEEN:
PFIZER CANADA ULC AND PFIZER PRODUCTS INC.
Plaintiffs by Counterclaim
-and-
APOTEX INC.
Defendant by Counterclaim
REASONS FOR DECISION
Mr. Justice Diamond
Released: September 27, 2021