New Evidence on Appeal Must Be in the Interests of Justice 
Pfizer Limited v. Ratiopharm Inc. 2009 FCA 338 (Layden-Stevenson, J.A.)

November 19, 2009

John B. Laskin and W. Grant Worden for the Appellant, Pfizer Limited (Pfizer)
David W. Aitken and Marcus Klee for the Respondent, ratiopharm Inc. (ratiopharm)

On July 9th, Pfizer appealed from the order of Justice Hughes which found Pfizer's '393 Patent relating to amlodipine besylate to be invalid. In the appeal, Pfizer filed an agreement as to the contents of the appeal book on August 10th and then its memorandum of fact and law on October 9th.

On August 12th, ratiopharm moved to request that the Court of Appeal set aside the prohibition order granted in relation to the '393 Patent in a separate court file (A-75-06) on the basis that it was obtained by fraud.

On this motion, Pfizer sought to vary the contents of the appeal book to include ratiopharm's August 12th motion from the separate proceeding and to amend its notice of appeal and its memorandum of fact and law.

Pfizer submitted that the ratiopharm motion ought to be included in the appeal book since ratiopharm is relying on Justice Hughes' finding relating to Section 53(1) of the Patent Act as a basis to set aside the Court of Appeal's order. The submission was, in effect, that Section 53(1) was a "live issue" that needed to be addressed by the Court of Appeal regardless of how it decided Pfizer's other grounds of appeal. Beyond that assertion, the Court of Appeal found Pfizer had not established that ratiopharm's motion was relevant to this appeal. The Court of Appeal also noted that Pfizer had not made a motion to adduce new evidence on the appeal under Rule 351 or established why the inclusion of ratiopharm's motion in the appeal book would be in the interests of justice.

In respect of Pfizer's proposed amendment to its notice of appeal, the Court of Appeal found that it did nothing more than track the language of Section 53(1) and that Pfizer had failed to indicate that the amendment is necessary and would serve the interests of justice.

The Court of Appeal dismissed the motion with costs to ratiopharm.

By: Christopher Heer, Bennett Jones LLP