Apotex Inc. v. Eli Lily and Company, 2015 ONCA 305

Drug: atomoxetine

Apotex has brought a case against Lilly pursuant to s. 8 of the Patented Medicines (Notice of Compliance) Regulations (the NOC Regulations). As part of the case, Apotex seeks damages pursuant to s. 8, under the Statute of Monopolies (U.K.), the Ontario Statute of Monopolies, and the Trade-Marks Act, as well as a disgorgement of Lilly’s profits due to alleged unjust enrichment. This case considered an appeal of Lilly’s motion to dismiss the unjust enrichment claim.

Apotex argued that the unjust enrichment claim was different than that previously considered by the Federal Court of Appeal, as this claim alleged that due to the finding of invalidity with respect to Lilly’s patent, and allegations of misrepresentation, the NOC Regulations could not be relied upon as a valid juristic reason for Lilly to be immune from an unjust enrichment claim.

The Ontario Court of Appeal considered the previous jurisprudence relating to the NOC Regulations constituting a complete code, and a juristic reason for precluding an unjust enrichment claim in the context of Apotex’ arguments. However, the Court decided the issue based on the lack of “corresponding deprivation” to Apotex. The Court held that Apotex was never deprived of the portion of Lilly’s revenues represented by its profits, as Apotex would never have earned those profits. The purpose of the doctrine is to reverse unjust transfers of wealth, which did not occur in this case. Furthermore, the Court held that Apotex had not properly plead the elements required for disgorgement of “profits of wrongdoing”, and even if it had, this is not a case where such an extraordinary remedy is available. Apotex was asking the Court to designate it as the de facto beneficiary of Lilly’s profits, but it is not the sole party with a legitimate right to deter the underlying wrong.

The Court held that s. 8 of the NOC Regulations can make a generic company whole. Furthermore, a fundamental principle of tort law is that the wronged person is compensated for the full amount of loss, but no more. Thus, Apotex’ appeal was dismissed.