Apotex sought damages for breach of contract and negligence against MDS for deficient bioequivalence studies that the FDA ultimately rejected.
The principal issue on appeal was whether the action was commenced within the two-year limitation period under the Limitations Act, 2002.
The trial judge found the action was timely, determining that discovery occurred on December 11, 2006, when Apotex learned the FDA would not accept the MDS studies.
The Court of Appeal upheld this conclusion but on different grounds, finding that the limitation period did not begin to run until December 11, 2006, based on when Apotex knew that the breach had caused injury, loss or damage.
The Court also upheld the trial judge's findings on breach of contract, mitigation, and damages.
