Pfizer Canada Inc. v. Genpharm ULC

Pfizer Canada Inc. v. Genpharm ULC

The motion judge found as a matter of law that amalgamation preserved corporate existence and that provincial business name registration provisions create regulatory offences and fines rather than extinguish a corporation; consequently the pleading that Genpharm ULC did not exist when it served the NOA was plain and obvious, frivolous and an abuse of process and therefore paragraphs 6 and 10 of the Notice of Application were struck under s.6(5)(b) of the Regulations.

Citation
2010 FC 684
Parties
Applicant: Pfizer Canada Inc.; Applicant: Eisai Co., Ltd.; Respondent: Genpharm ULC; Respondent: Mylan Pharmaceuticals ULC; Respondent: The Minister of Health
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 June 2010
Procedural Posture
Application Under the Patented Medicines (notice of Compliance) Regulations / Motion to Strike (subsection 6(5)(b) Motion)
Outcome
Paragraphs 6 and 10 of the Notice of Application struck without leave to amend; costs reserved.
Legal Topics
Amalgamation, Corporate Existence, Notice of Allegation (noa), Motions to Strike, Statutory Interpretation, Business Name Registration
Source Language
English
Corporate Law Administrative Law Intellectual Property (patent Law) Regulatory Law Procedural Law Amalgamation Corporate Existence Notice of Allegation (noa) +3 more

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Parties

Pfizer Canada Inc.

Applicant

Eisai Co., Ltd.

Applicant

Genpharm ULC

Respondent

Mylan Pharmaceuticals ULC

Respondent

The Minister of Health

Respondent

Procedural Posture

Application Under the Patented Medicines (notice of Compliance) Regulations / Motion to Strike (subsection 6(5)(b) Motion)

Legal Issues

  1. 1 Whether Genpharm ULC legally existed at the time it served the NOA
  2. 2 Whether an entity that continues to carry on business under a pre-amalgamation name without registration can be a "second person" under the Regulations
  3. 3 Whether an NOA sent by an entity that did not legally exist is a nullity

Ratio Decidendi

The motion judge found as a matter of law that amalgamation preserved corporate existence and that provincial business name registration provisions create regulatory offences and fines rather than extinguish a corporation; consequently the pleading that Genpharm ULC did not exist when it served the NOA was plain and obvious, frivolous and an abuse of process and therefore paragraphs 6 and 10 of the Notice of Application were struck under s.6(5)(b) of the Regulations.

Court Disposition

Paragraphs 6 and 10 of the Notice of Application struck without leave to amend; costs reserved.

Orders

  • Paragraphs 6 and 10 of the Notice of Application are struck without leave to amend.
  • Costs of the motion are reserved to be agreed upon by the parties or fixed by the Court in accordance with the reasons; parties may make brief written representations on costs within prescribed timeframes.