Apotex Inc. v Schering Corporation, 2016 ONSC 3407

The defendant corporations sought to strike Apotex's claims to:

  1. Treble damages pursuant to s 4 of An Act concerning Monopolies and Dispensation with Penal Laws, etc., R.S.O. 1897, c. 323 (the "Ontario Monopolies Act");
  2. Treble damages pursuant to s. 4 of An Act concerning Monopolies and Dispensation with Penal Laws and the Forfeitures thereof, 1624, 21 Jac. 1, c. 3 (the "UK Monopolies Act", or, collectively the "Monopolies Acts")
  3. Damages or an accounting of profits under the Trade-marks Act, R.S.C. 1985, c. T-13;
  4. Disgorgement of revenues or profits on the basis of unjust enrichment; and
  5. Other relief (the so-called "basket clause"). 

The Court noted that the last two prayers for relief (d and e) had been struck from a very similar Apotex statement of claim in prior litigation. Apotex did not oppose the striking of those claims.

But as to the remaining causes of action, the Court followed earlier jurisprudence and held that in light of the unsettled nature of the applicable law the objections should not be decided at the pleadings stage of the proceeding. Instead, the Court held that where the legal issues are as novel or unclear as they are here, the correct course is to have them resolved together on the merits.