Court of Appeal for Ontario
Before: Goudge, Watt and Pepall JJ.A.
Between:
Apotex Inc. Plaintiff (Appellant)
and
Abbott Laboratories, Limited, Takeda Pharmaceuticals Company Limited, and Takeda Pharmaceuticals America, Inc. Defendants (Respondents)
And Between:
Abbott Laboratories, Limited, Takeda Pharmaceuticals America, Inc., Takeda Pharmaceuticals North America, Inc., and Takeda Pharmaceuticals Company Limited Plaintiffs by Counterclaim
and
Apotex Inc. Defendant by Counterclaim
Counsel:
David Conklin and Daniel Cohen, for the appellants
Steven Mason and David Tait, for the respondent Abbott Laboratories, Limited
Christopher Van Barr, for the respondents Takeda Pharmaceutical Company Limited and Takeda Pharmaceuticals America Inc.
Heard: August 24, 2013
On appeal from the judgment of Justice Michael G. Quigley of the Superior Court of Justice, dated January 15, 2013.
Endorsement
1The appellant appeals from the partial summary judgment dismissing its unjust enrichment claim for disgorgement of the respondents’ profits or revenues.
2In this court, the appellant argued that it should be entitled to assert such a claim because at trial it may be determined that the Settlement Agreement, between the parties giving the Federal Court jurisdiction to award damages between September 2008 and May 2009 is unenforceable due to s. 8 of the Patented Medicines Regulations (Notice of Compliance) (the “Patent Regulations”). If so, the appellant says that the trial judge should be able to make the disgorgement order sought to make up for its unenforceable right to damages.
3In our view that argument must fail. The appellant concedes that s. 14(b) of the Settlement Agreement can give it no more than damages calculated according to s. 8 of the Patent Regulations up until May 2009. The appellant also concedes that those damages do not include the disgorgement sought.
4If the extension from September 2008 to May 2009 provided in the Settlement Agreement is unenforceable, the deprivation that the appellant suffered could be no more than their damages for that period calculated according to s. 8 of the Patent Regulations. That deprivation cannot therefore extend to disgorgement by the respondents of their profits or revenues.
5In its factum, the appellant argues more broadly that, despite the Patent Regulations, it should be entitled to pursue an unjust enrichment claim for disgorgement of the respondents’ profits or revenues.
6In our view, the simple answer to that argument is that the profits or revenues earned by the respondents for which the appellant claims disgorgement are due to the operation of the regulatory scheme of the Patent Regulations. The respondents’ right to be in the market to the exclusion of the appellant and therefore to earn its profits or revenues is that provided for by the Patent Regulations. Those Regulations constitute a valid juristic reason for the respondents’ profits and revenues for the period in question. This precludes the appellant’s claim for disgorgement.
7In the end, both arguments fail. The appeal must be dismissed.
8Costs to the Abbott respondent in the amount of $25,000 in total, and to the Takeda respondents $15,000 in total.
“S.T. Goudge J.A.”
“David Watt J.A.”
“S.E. Pepall J.A.”
