Elizabeth Margaret Nixon

The appellant appealed an order of the Superior Court of Justice dismissing his action against the respondent under Rule 2.1.

The Court of Appeal found that the statement of claim disclosed no cause of action against the respondent and was plainly frivolous and an abuse of process on its face.

The court upheld the dismissal, finding no error in the Superior Court justice's decision to dismiss the claim without inviting written submissions from the appellant.

The court noted that even if written submissions had been provided, based on the appellant's factum and oral argument, there would be no prospect of a different outcome.

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.