• Motion for Particulars in Action under Section 8 Denied as Not Necessary
  • April 9, 2015 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Apotex Inc.v.Pfizer Canada Inc.,2014 FC 1186 Drug: eletriptan hydrobromide

    Pfizer brought a motion in an action brought pursuant to section 8 of the Patented Medicines(Notice of Compliance) Regulations seeking to strike particular paragraphs of Apotex’s Statement of Claim or in the alternative, particulars of those paragraphs. The impugned paragraphs related to the nature of the damages claimed, the type of loss allegedly suffered by Apotex and whether the amount claimed exceeded $50,000 as required by the Federal Courts Rules.

    The Court began by noting that statements by Pfizer that it cannot understand the case against it are “surprising” because it is a Defendant in at least one other proceeding with a similar Statement of Claim and in which no similar motion was brought by Pfizer.

    The Court held that particulars of the damages claimed need not be provided because damages pursuant to section 8 are evolving. Further, these damages are a statutory remedy and the Courts have described the scope of these damages, and therefore Pfizer does not require particulars. The Court agreed with Pfizer that it is necessary to plead that damages greater than $50,000 are being claimed but the Court granted Apotex relief from this requirement and held that the action shall proceed on the basis that damages will exceed $50,000. Costs were awarded to Apotex in a fixed amount to be paid forthwith.