Docket: T-2280-12
Citation:
2017 FC 957
Ottawa, Ontario, October 26, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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TEVA CANADA LIMITED
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Plaintiff
(Defendant by Counterclaim)
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and
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PFIZER CANADA INC., PFIZER INC., AND PFIZER IRELAND
PHARMACEUTICALS
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Defendants
(Pfizer Canada Inc., Plaintiff by Counterclaim)
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and
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PFIZER
PRODUCTS INC.
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Plaintiff
by Counterclaim
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ORDER AND REASONS
[1]
Before the Court are two motions: (1) a motion
brought by the Defendants [Pfizer] for an Order granting them leave to amend
their Statement of Defence and Counterclaim, and (2) a motion brought by the
Plaintiff [Teva] for an Order that portions of Pfizer’s motion record and
paragraphs 28B (c) to (e) of the Amended Statement of Defence and Counterclaim
be redacted in the Court’s public file.
[2]
My view of these motions is captured best in the
line spoken by Mercutio as he lay dying: "A plague
o' both your houses!" (Romeo and Juliet, Act III, Scene 1).
[3]
Pfizer’s motion was unnecessary when it was
filed because Teva, without condition, had consented to the proposed Amended
Statement of Defence and Counterclaim (attached hereto). Notwithstanding
having the consent in hand, Pfizer, for reasons that appear to be in the nature
of some tactical advantage, filed its motion.
[4]
Teva, having given its unqualified consent to
the amendment, attempted to retract its unconditional consent after Pfizer
advised that it would be filing its motion record with the Court. Teva also brought
its own cross-motion seeking a confidentiality Order relating to Pfizer’s
motion record and an Order redacting parts of the Amended Statement of Defence
and Counterclaim.
[5]
Pfizer’s threat to file and the subsequent filing
resulted in the Court holding an urgent 25 minute case management conference,
Teva bringing its cross-motion, and the setting aside of 3 hours to hear these
motions. Each of these appearances occupied the time of four counsel, a Court
Registrar, and this Judge.
[6]
Had Pfizer not acted as it has, then it would now
have its amended pleading, and none of the wasteful steps outlined above would
have occupied this Court’s time or consumed its limited resources.
[7]
Given my findings and disposition of these
motions, it is valuable, in my view, to provide the following timeline and
recitation of the statements and positions of the parties.
[8]
This action relates to Pfizer’s Viagra (sildenafil
citrate) pharmaceutical. Pursuant to section 8 of the Patented Medicines
(Notice of Compliance) Regulations SOR/2006-242, Teva seeks compensation
for damages it alleges it suffered from being unable to market its sildenafil
tablets.
[9]
Pfizer asserted at paragraph 28(c) of its
Statement of Defence and Counterclaim that if it was found that Teva was
entitled to claim damages, then any assessment must take into account “the propriety of any rebates and professional allowances
(whether cash payments, free goods or reduced prices) rendered in association
with the Teva Tablets.”
[10]
In its Reply, Teva responded that this
allegation regarding its rebating practices was “without
any factual basis” and it reserved its right to seek to have these
paragraphs struck pursuant to Rule 221 of the Federal Courts Rules. In
its Reply to Defence to Counterclaim, Pfizer provided particulars regarding its
allegation that Teva’s impropriety in failing to comply with Provincial
legislation.
[11]
Examinations for Discovery were held. Teva
produced as its representative, Scott Sherwood, Associate Director of Business
Finance. Pfizer asked a number of questions relating to Teva’s rebate and
professional allowance practices. Pfizer, believing it had obtained
significant admissions regarding the propriety of these practices, advised Teva
that it would be amending its Statement of Defence and Counterclaim to
particularize these allegedly improper practices. By letter dated July 20,
2017, counsel for Pfizer wrote to counsel for Teva, as follows:
We write to advise you that Pfizer will be
bringing a motion to amend its Statement of Defence and Counterclaim. We
enclose an electronic copy of Pfizer’s Motion Record, in both its public and
confidential form, which is hereby served upon you in accordance with the
parties [sic] agreement to accept electronic service and the Federal
Court Rules [sic]. Hard copies will follow by overnight courier.
[12]
Counsel for Teva responded providing his
client’s consent to the proposed amendment, advising that Teva would be “providing corrected responses” to the answers given
at Discovery, and stating that as Pfizer had Teva’s consent, no motion was
required. In correspondence dated July 27, 2017, counsel for Teva wrote to
counsel for Pfizer, as follows:
I write in response to your letter of July
20, 2017 wherein you advised that Pfizer seeks to amend its Statement of
Defence and Counterclaim. I have received instructions from Teva to consent
to the proposed amendments.
As a first point, much of the testimony
which Pfizer seeks to rely upon is inaccurate and, in accordance with rule 245
of the Federal Courts Rules, we will be providing corrected responses
shortly.
Moreover, Teva takes issue with the manner
in which you have prepared the material for the public version of the motion
record you served on July 20. The transcripts have been marked “Confidential”
in their entirety and it is not within your client’s purview to unilaterally
ignore that designation, as it has done. If the motion record were to be
filed, Teva would insist that the transcripts be redacted in their entirety.
That said, as Teva has consented to the
amendments, there is no reason to file the motion record and Teva expects that
it will not be filed. If this is not so, please advise immediately so that
Teva can bring a motion to protect its confidential information.
[emphasis added]
[13]
On July 28, 2017, counsel for Pfizer wrote to
express serious concerns about Teva’s “unexplained
delay in its intent to correct its evidence” stating: “Conveniently, it was only after Pfizer served its motion to
amend on Teva based on Sherwood’s evidence that Teva now seeks to correct
Sherwood’s evidence. Teva’s actions are telling.”
[14]
Counsel for Pfizer also responded on July 31,
2017, to the inquiry as to whether Pfizer, in the face of Teva’s consent, would
proceed to file its motion: “Pfizer will be filing the
public version of its motion record, which it has a right to do” [emphasis
added]. That resulted in a response from Teva, and an email from Teva
to the Court seeking an urgent case management conference.
[15]
Teva’s letter to Pfizer dated July 31, 2017,
reads as follows:
I write in response to your letter of July
31, 2017 wherein you advised that Pfizer continues to intend to file a motion
for leave to amend its Statement of Defence and Counterclaim notwithstanding
that you will receive Teva’s consent to the proposed amendments.
Obviously, Pfizer’s motion is
unnecessary, as leave is not required. That of
course, shines a bright light on Pfizer’s real motivation to nevertheless
publicly file material that it neither required nor necessary in light of
Teva’s consent. It also raises the spectre of improper disclosure and a
potential breach of the implied undertaking of confidentiality. Public
disclosure of compelled (and inaccurate) material cannot be permissible where
it is entirely unnecessary.
In addition, of course, requiring Teva to
bring a motion where none is required places an entirely unnecessary burden on
the Court and on Teva particularly in circumstances where Teva reasonably
believed that providing consent to the pleading amendments would obviate the
need for a confidentiality motion.
As you know, we have requested an immediate
Case Management Conference before Justice Zinn, at which we will bring your
client’s conduct to his attention.
[emphasis added]
[16]
At 4:51 p.m. on July 31, 2017, counsel for Teva
emailed the Court alerting it and Pfizer that Teva would now be seeking redactions
in the Amended Statement of Defence and Counterclaim:
Teva will be making submissions on the
treatment of the proposed amended statement of defence and counterclaim on
tomorrow’s Case Management Call. Until that has
taken place we respectfully ask that the draft pleadings not be placed onto the
Court file. [emphasis added]
[17]
In the case management conference which
commenced at 10:30 a.m. on August 1, 2017, counsel for Teva, informed the Court
and Pfizer that he was instructed to bring a motion seeking an order sealing
potions of the motions materials filed by Pfizer, which Teva asserted to
contain confidential information and redacting paragraphs 28B (c) to (e) of the
Amended Statement of Defence and Counterclaim.
[18]
The Court determined that Pfizer’s motion to
amend and Teva’s confidentiality motion would be heard in Toronto on October 5,
2017, and that all materials would be sealed in the Court file pending the
determination of the motions.
[19]
When these motions came on for hearing, the
Court, in light of Rule 200 of the Federal Courts Rules, asked counsel
for Pfizer why its motion for leave to amend had been filed. Rule 200 provides
as follows:
Notwithstanding rules 75 and 76, a party
may, without leave, amend any of its pleadings at any time before
another party has pleaded thereto or on the filing of the written consent of
the other party. [emphasis added]
[20]
Notwithstanding numerous valiant attempts by Mr.
Pasparakis, no response satisfactory to the Court was provided; because, in my
view, there is none. Just because a party has a “right”
to do something, as Pfizer asserts, does not mean that it should do so when the
Rules provide for and less expensive and less time-consuming way to obtain the
result requested. The motion for leave to amend was and is unnecessary in
light of Teva’s consent. Pfizer’s filing of its motion, as I expressed at the
hearing, was abusive of this Court’s processes and procedures, and unnecessary.
[21]
The consequence of Pfizer filing the motion was
that Teva had time to attempt to resile from its previous unequivocal and
unconditional consent to the amendment.
[22]
At the hearing, counsel for Teva conceded that
if the Discovery transcripts could be read to reflect the allegations set out
in paragraphs 28B (c) to (e) of the Amended Statement of Defence and
Counterclaim, then there was no basis warranting their redaction. In my
assessment, that test has been met. Teva acknowledged as much given that it now
seeks to “correct” the responses given at
Discovery.
[23]
Teva, having consented without condition to the
filing of the Amended Statement of Defence and Counterclaim, should not have
sought, only three days later, to resile from that consent. It too has abused
the Court processes.
[24]
Pfizer is principally at fault for the wasted
judicial resources that these events have caused. The proximate cause was Pfizer’s
decision, notwithstanding having in hand Teva’s consent to the amendment it sought,
to file a motion for leave to amend its pleading.
[25]
There may be some confidential and proprietary
information in the materials that have been filed. Teva asserts that there
is. Given that none of the materials filed on these motions ought to have been
filed in the first place; I find that any further consideration by the Court as
to what, if any materials ought to be redacted or sealed would be an additional
waste of judicial resources. Accordingly, I will direct the Registry to remove
all of the filed materials from the Court record and return them to the filing party,
save and except any Judge’s copies which are to be shredded.
[26]
In my view, neither party is entitled to costs:
Pfizer ought never to have brought this motion, and Teva ought not have played
tit-for-tat and withdrawn its unconditional consent. I only regret that I am
unable to order both parties to compensate the Court for its losses.
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