In Apotex Inc. v Pfizer Ireland Pharmaceuticals, 2016 ONSC 7193, Justice Nordheimer of the Ontario Divisional Court denied Pfizer leave to appeal a decision of Justice Lederman (2016 ONSC 4966, reported in E-TIPS® Newsletter here) refusing to strike certain claims of Apotex for damages arising from a statutory stay under the Patented Medicines (Notice Compliance) Regulations concerning a generic version of Pfizer’s VIAGRA® (sildenafil).

In the motion below, Pfizer moved to strike Apotex’s claim in a number of respects. The motions judge allowed Apotex’s claims for damages for conspiracy, unjust enrichment, and claims under the Trade-marks Act to stand. Pfizer argued that the Patent Act provides “a complete code” for any remedies arising from a situation such as this one and consequently, Apotex’s attempt to advance common law claims outside of the remedies provided by the statute could not possibly succeed and ought to be struck out.

On the leave application, the Court found that it was not clear that there were conflicting decisions in Ontario regarding the issues in play in this case. The Court further found that it did not have a good reason to doubt the correctness of the motion judge’s order and application of the test to strike a pleading. In particular, the Court noted that since there was confusion or uncertainty whether the “complete code” argument was sufficient to defeat claims of the type being advanced by Apotex, it was certainly not “plain and obvious” that the claims could not succeed. 

Summary By: Sumaiya Sharmeen

E-TIPS® ISSUE

16 11 30

Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.

E-TIPS is a registered trade-mark of Deeth Williams Wall LLP.