[2012] 3 F.C.R. D-13
Corporations
Appeals from Federal Court decisions (1) applying equitable doctrine of election to bar appellant (Teva Canada Limited) from continuing action against respondents (Wyeth LLC, Pfizer Canada Inc.) for damages under Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 8 (2011 FC 1169), (2) dismissing action (2011 FC 1442)—Original plaintiff, ratiopharm, amalgamating under Canada Business Corporations Act, R.S.C., 1985, c. C-44 with other generic drug manufacturer, Novopharm Limited, to become Teva—Whether equitable doctrine of election barring Teva from continuing ratiopharm’s claim against Wyeth, if not, whether claim should be reduced by gains realized by Novopharm as licensee of Wyeth—Federal Court misapprehending Novopharm’s contractual rights under licence agreement—Novopharm’s decision to exercise contractual right of consultation with Wyeth not affecting potential future right of Teva, as ratiopharm’s successor by amalgamation, to continue ratiopharm’s s. 8 damages claim—Equitable doctrine of election not applying to bar Teva from continuing that claim—As to whether claim should be reduced, argument ratiopharm’s damages should be offset by Novopharm’s profits incorrectly assuming pre-amalgamation profits those of Teva—Profit not property or chose in action surviving amalgamation to continue existence as asset of amalgamated corporation—Appeals allowed.
Teva Canada Limited v. Wyeth LLC (A-417-11, A-486-11, 2012 FCA 141, Sharlow J.A., judgment dated May 8, 2012, 19 pp.)