Teva Canada Limited v. Bayer et al., 2020 FCA 86 (Rivaroxaban*)

Justice Nadon; Justice Pelletier; Justice de Montigny - 2020-05-14

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Before us are two appeals of a decision (the Order) of Pentney J. (the Judge) of the Federal Court (2019 FC 1039), dated August 1, 2019, wherein he ordered that the trial of common issues in Bayer Inc. et al. v. Taro Pharmaceuticals Inc. (T-435-19) and Bayer Inc. et al. v. Sandoz Canada Inc. (T-806-19) was to be heard together with the trial of common issues set for Bayer Inc. et al. v. Teva Canada Limited (T-1960-18) and Bayer Inc. et al. v. Apotex Inc. (T-2093-18). ... The appellants Teva and Apotex submit that the Judge erred in making the impugned Order joining their actions with the actions of the respondents on common issues and that, as a result, we should intervene. ... According to the appellants, as matters stood prior to the Order, in the event their defences to Bayer’s actions against them were successful, they would have shared the “first-mover advantage” in the rivaroxaban market. ... Finally, I would advise parties, such as the appellants in the present matter, to always either insist that a motion be brought by those seeking a Rule 105 order or, where a judge intends to make such an order of his or her own motion, to indicate to the judge that sufficient time is required to prepare submissions and to constitute, if necessary, an evidentiary record. ... Thus, although an argument can be made on the basis of section 8 that the first-mover advantage is a relevant consideration for the assessment of damages, it does not follow, as the appellants argue, that they are also entitled to be heard first. ... Section 6.02 of the Regulations provides that no action may be joined to an action commenced under subsection 6(1) during the period wherein the Minister cannot issue a NOC under paragraph 7(1)(d). ... Thus, notwithstanding my conclusion that the Judge did not err in regard to Rule 105, in my view, the hearing together of the four trials on the common issues is counter to the prohibition found in section 6.02. ... Consequently, it is my view that, in case-managing these cases, judges should bear in mind that they are not positively duty-bound to decide them within the 24-month period. I wish to be clear that I am not suggesting that the 24-month guideline be dealt with flippantly. However, it should be recognized that disposing of cases within 24 months remains a goal—not an obligation on the Court. ... For the above reasons, I would allow the appeals, set aside the decision of the Federal Court dated August 1, 2019 (2019 FC 1039) and grant the appellants their costs in regard to the appeals and the motions for leave to appeal.

Decision relates to:


Canadian Intellectual Property