Interlocutory motion to strike in a s.8 proceeding; 2009 FC 319; Gliclazide; March 25, 2009

The defendant brought a motion to strike portions of the generic company's claim for s. 8 damages. Specifically, Servier sought to remove Apotex' claim for unjust enrichment. The Court agreed that, as a consequence of both the amendments to the PM(NOC) Regulations and Justice Hughes' decision in T-1144-05, a claim for unjust enrichment could no longer be advanced under the PM(NOC) Regulations.

However, Apotex argued that this claim could still be advanced under s. 20(2) of the Federal Courts Act. The Court found that reading Apotex' pleading as it currently stands, the claim is framed under the PM(NOC) Regulations and not under the Federal Courts Act. Indeed, Servier was not even aware of this legal basis for the claim until it received Apotex' written submissions on this motion. As a result, Apotex' pleadings in relation to unjust enrichment pursuant to the PM(NOC) Regulations were struck, without prejudice, to Apotex' rights to amend the claim to plead pursuant to the Federal Courts Act.

Apotex had also made a number of pleadings regarding its interpretation of the legal effect of the PM(NOC) Regulations. However, these were not struck as the Court found them to properly provide background to the claim, and not prejudice the defendant.

The full text of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2009/2009fc319/2009fc319.html