Pharmascience Inc. v. Pfizer Canada Inc.

Pharmascience Inc. v. Pfizer Canada Inc.

The appeal is allowed and the Prothonotary's order striking the allegations of lost sales of other products is set aside because it was not plain and obvious that those pleaded losses disclosed no reasonable cause of action under s.8 of the PMNOC Regulations; Eli Lilly is distinguishable as it concerned post-liability amendments and lack of particularity does not justify striking at this stage, and Pfizer should have sought particulars rather than a strike.

Citation
2015 FC 1134
Parties
Plaintiff: Pharmascience Inc.; Defendant: Pfizer Canada Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
8 October 2015
Procedural Posture
Appeal From Prothonotary Order / Decision on Appeal Setting Aside Prothonotary Order
Outcome
Appeal allowed; Order of the Prothonotary dated April 27, 2015 set aside; costs to Pharmascience based on mid-column Tariff B
Legal Topics
PMNOC Regulations, Section 8 Damages, Striking Pleadings, Leave to Amend, Standard of Review
Source Language
English
Intellectual Property Patent Law Civil Procedure PMNOC Regulations Section 8 Damages Striking Pleadings Leave to Amend Standard of Review

Case Brief

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Parties

Pharmascience Inc.

Plaintiff

Pfizer Canada Inc.

Defendant

Procedural Posture

Appeal From Prothonotary Order / Decision on Appeal Setting Aside Prothonotary Order

Legal Issues

  1. 1 Whether paragraphs 35 and 36 alleging lost sales of other products disclose a reasonable cause of action or should be struck as plain and obvious
  2. 2 Whether Eli Lilly (2013 FC 677) controls or is distinguishable on a strike motion vs a motion to amend
  3. 3 Whether Pfizer should have sought particulars rather than striking the pleadings

Ratio Decidendi

The appeal is allowed and the Prothonotary's order striking the allegations of lost sales of other products is set aside because it was not plain and obvious that those pleaded losses disclosed no reasonable cause of action under s.8 of the PMNOC Regulations; Eli Lilly is distinguishable as it concerned post-liability amendments and lack of particularity does not justify striking at this stage, and Pfizer should have sought particulars rather than a strike.

Court Disposition

Appeal allowed; Order of the Prothonotary dated April 27, 2015 set aside; costs to Pharmascience based on mid-column Tariff B

Orders

  • Set aside the Order of the Prothonotary dated April 27, 2015
  • Costs of this appeal payable to Pharmascience Inc. based on the mid-column of Tariff B