Rebecca Stiles

Following the dismissal of the plaintiffs' action on a summary judgment motion, the successful defendants sought costs on an elevated or substantial indemnity basis of over $850,000, or alternatively partial indemnity costs of over $730,000.

The plaintiffs argued for an award of $150,000.

The court declined to award elevated costs, finding the plaintiffs' conduct did not rise to the level of being reprehensible or outrageous, despite making unfounded allegations of fraud and conspiracy.

Recognizing the high stakes and complexity of the litigation between two well-resourced pharmaceutical companies, the court awarded the defendants partial indemnity costs fixed at $700,000 inclusive of disbursements and taxes.

The defendants (Lilly) brought a motion for summary judgment to dismiss the plaintiffs' (Apotex) action for damages arising from Lilly's use of the PM(NOC) Regulations to delay Apotex's generic drug from entering the market.

Apotex claimed damages under the Statutes of Monopolies, the Trademarks Act, and common law conspiracy after Lilly's patent was later declared invalid.

The court found that while the action was not barred by the Limitations Act, 2002, the claims failed because the Patent Act and PM(NOC) Regulations constitute a complete code.

Lilly's actions in listing its presumptively valid patent and pursuing prohibition proceedings were authorized by law.

The motion for summary judgment was granted and the action was dismissed.