Low v. Pfizer Canada Inc., 2015 BCCA 506

The British Columbia Court of Appeal has overturned the certification of a class action relating to the drug Viagra, dismissing the action.

The Supreme Court of Canada found Pfizer's patent for Viagra to be invalid in 2012. The plaintiff Low commenced the proceeding by claiming that Pfizer had unlawfully abused the patent system, and as a result of its unlawful conduct, Pfizer had overcharged the purchasers of Viagra. Low brought the proposed class action on behalf of British Columbia purchasers of Viagra who were allegedly overcharged during the period January 1, 2006 to November 30, 2012. The Court noted that the defined class period in this litigation appears to correspond roughly to the period during which Teva sought a notice of compliance for generic sildenafil, but was prevented from doing so by reason of the prohibition proceedings initiated by Pfizer.

The Chambers Judge had found that the application did disclose a valid cause of action in intentional interference with economic relations and unjust enrichment. The Chambers Judge further found that because the Patent Regulatory Regime is silent as to consumer rights and remedies for breach of the Patent Act, it cannot be a complete code.

The BC Court of Appeal held that the Patent Regulatory Regime does not confer a direct benefit or protection on a consumer, nor does the legislation confer an express right on a consumer. Therefore, one cannot apply the propositionthat the absence of an enforcement mechanism in the legislation at issue may be taken as implying a common law private cause of action by a consumer.

The BC Court of Appeal further noted that there is no common law tort of breach of statute, and that such breaches should be generally subsumed in the law of negligence. Low's claim was characterized as fundamentally a claim for breach of statute which is said to arise out of "abuse of the Patent system."

Ultimately the BC Court of Appeal held that in circumstances such as these--where Parliament has comprehensively legislated a particular area of the law — the reasonable inference is that it did not intend to extend rights of recovery beyond those embodied in the regime.

In the alternative, the BC Court of Appeal held that the claim did not disclose a cause of action in unlawful interference with economic relations. This is because a breach of statute must be otherwise actionable and a generic has no actionable claim against a brand name manufacturer for unjust enrichment or disgorgement of profits, because the Patent Regulatory Regime is a complete code.

In the further alternative the BC Court of Appeal held that the claim did not disclose a cause of action in unjust enrichment, because a complete statutory code excludes equitable claims in unjust enrichment. Even if the BC Court of Appeal did not consider the Patent Regulatory Regime a complete code, the claim in unjust enrichment still would not be allowed to proceed because of the existence of a juristic reason. In short, the Court determined that the contracts between Pfizer and the purchasers provided a juristic reason and the plaintiff has pleaded no facts to suggest the price was the fundamental fact on which the contracts were based.