Docket:
T-1844-07
Citation:
2011 FC 1442
Ottawa,
Ontario, December 9, 2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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TEVA CANADA LIMITED
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Plaintiff
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and
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WYETH LLC and PFIZER CANADA INC.
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Defendants
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Defendants have brought a motion for an Order dismissing this action and for
directions as to costs. The motion is a consequence of my Judgment in this
action dated November 17, 2011, together with Reasons cited as 2011 FC 1169. In
that Judgment, I allowed the motion before me to proceed as a summary trial and
held that the Plaintiff Teva was not entitled to continue ratiopharm’s claim
for damages under section 8 of the NOC Regulations. Costs in a fixed sum
were awarded to the Defendants. The terms of that Order were drafted in a
manner so as to be consistent with the relief requested by the Defendants in
the motion.
[2]
The
Defendants now come before me to have the action dismissed (the Counterclaim
has been discontinued) and for costs. The Plaintiff agrees that, subject to any
Judgment or Order of an appellate Court, dismissal of the action is
appropriate. The Plaintiff argues, however, that a Judgment dismissing the
action should not be given at this time because it has filed an appeal from my
Judgment and is endeavouring to have that appeal expedited. The Plaintiff would
like to retain the trial date, fixed as February 11, 2013, for twenty-five (25)
days in the event that it is successful in the Court of Appeal.
[3]
I
am sceptical that the parties can exhaust their appellate rights and still have
time to complete preparation for a trial date of February 11, 2013. Even if the
Court of Appeal were to grant Judgment in favour of Teva, one would expect that
Wyeth, et al. may seek leave to appeal to the Supreme Court of Canada. It is
unrealistic to expect that all appellate remedies would be concluded in time
for a trial commencing February 11, 2013.
[4]
A
second reason respecting the trial date is that consideration must be given to
the pressures on this Court to find trial dates for other litigants in other
cases. Even now, some litigants are not expecting trial dates until 2015.
[5]
Accordingly,
it is appropriate now to grant Judgment dismissing the action and releasing the
trial date. I will include as a term of the Order a provision that either party
may, if it is then appropriate, apply again for an expedited trial date.
[6]
As
to costs, I will award costs of the action to the Defendants, but only those
costs and reasonable disbursements arising after the date of the merger between
ratiopharm and Teva/Novopharm, that is, after August 10, 2010. This is
appropriate, since I have found, as expressed in my earlier Reasons, that
ratiopharm had a valid cause of action until that date.
[7]
The
Defendants are entitled to their costs, calculated at the upper level of Column
IV, together with reasonable disbursements incurred after August 20, 2010, but
not before. No costs or disbursements are awarded in respect of the
Counterclaim, now discontinued, or in respect of the summary trial for which
costs have already been awarded. Costs that have otherwise been awarded by any
other Order in this action shall be unaffected. Costs of the present motion are
awarded to the Defendants, fixed in the sum of $1,000.00.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
This
action is dismissed;
2.
The
trial date previously fixed to begin on February 11, 2013 is released; subject
however, to the provision that either of the parties may seek a new trial date
on an expedited basis should that be required after all appeal remedies have
been exhausted or determined.
3.
The
Defendants are awarded costs of this motion fixed at $1,000.00. The Defendants
are otherwise entitled to costs to be assessed, if not agreed upon, consistent
with the Reasons herein.
"Roger
T. Hughes"
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