Iain Cockbu

The plaintiff, a generic drug manufacturer, brought an action for damages against the defendants under s. 8 of the Patented Medicines (Notice of Compliance) Regulations for delayed market entry of its generic drug.

The plaintiff argued it was entitled to damages because the defendants' prohibition proceeding was dismissed for mootness after the underlying patent was invalidated in a separate proceeding.

The court dismissed the claim, finding that the plaintiff's allegations in the prohibition proceeding had failed on the merits, and s. 8 does not provide redress where the innovator prevailed on the merits but the patent was later invalidated by a third party.

The court also found that, even if liability existed, the plaintiff would not have entered the market any sooner in the hypothetical world due to its risk-averse nature.

The appellant, a generic drug manufacturer, appealed a Divisional Court decision dismissing its application challenging the vires of the Ontario government's drug pricing policy.

The policy imposed a price freeze on generic drugs and regulated their prices as a percentage of the equivalent brand name drug (the 70/90 rule).

The appellant argued the regulations were ultra vires the Drug Interchangeability and Dispensing Fee Act and the Ontario Drug Benefit Act, and were arbitrary and discriminatory.

The Court of Appeal dismissed the appeal, finding that the amended legislation explicitly authorized the Minister to consider the prices of other drug products when setting the drug benefit price.

The court also held that the policy was not arbitrary or discriminatory, as its purpose was to achieve the lowest prices for drug products in the public interest.