Teva Canada Limited
v Pfizer Canada Inc. [2013
FC 1066]

Background

The present action is pursuant to s. 8 of the PM(NOC)
Regulations for damages for keeping RATIO-AMLODIPINE off the market between
2006 and 2009.

On April 5, 2013 Prothonotary Milczynski denied Pfizer’s
motion to strike Teva’s statement of claim and dismissed the motion. This is a
hearing of the appeal.

Analysis

Pfizer argued that the standard of review of a
Prothonotary decision dismissing a motion to strike is considered de novo since it is vital to the present
action. A judge, sitting on an appeal of a Prothonotary’s order, must consider
the vitality of the questions raised in the motion. The requirement to consider
does not impose a certain response or outcome. Not all impugned findings made
by a Prothonotary require de novo
consideration.

Whether a de novo hearing
is warranted is dependent on the substantive issue under consideration and the
importance of that issue to the litigation.[7]

Issues considered by a Prothonotary leading to the
dismissal of a motion to strike are not subject to being considered de novo on appeal. This is because the
issues considered when determining whether to dismiss a motion to strike are
not vital to the final resolution of the claim.[10]

Pfizer’s vitality argument is therefore dismissed.

Alternatively Pfizer argues that the exercise of
discretion was based upon a wrong principle or misinterpretation of the facts. The
argued this despite at the hearing conceding that the Prothonotary applied the
correct tests in deciding to dismiss the motion to strike.[13] Pfizer simply
disagrees with the conclusion of the Prothonotary.[14] The Prothonotary was
correct to ask whether it was plain and obvious that Teva cannot succeed on the
merits or that it was an abuse of process. The correct legal principles were
applied on a full apprehension of the facts.[15]

Commentary

The Judge notes that issues considered by a Prothonotary when
determining whether to dismiss a motion to strike are not vital to the final
resolution of the claim. It would seem that should the opposite conclusion be
reached – in other words the dismissal of the action – those considerations would be determinative with respect to
the final resolution. A results based analysis would seem wholly inconsistent
with fairness in the trial process – whether the final resolution occurred
before the Prothonotary or not should not determine how the decision is
reviewed.