Apotex appealed in the Ontario Court of Appeal from a partial summary judgment that dismissed its unjust enrichment claim for the disgorgement of the respondents’ profits or revenues. Our summary of the decision of the Ontario Superior Court of Justice is here.
The Court dismissed Apotex’ first argument that the claim for unjust enrichment should be allowed to proceed on the basis that the Settlement Agreement, which governs damages between the parties for a particular period of time, may be unenforceable. The Court noted that, if the Settlement Agreement is unenforceable, Apotex’ deprivation can be no more than the damages calculated according to section 8 of the Patented Medicines (Notice of Compliance) Regulations, which Apotex conceded does not include disgorgement.
Apotex also argued broadly that the claim of unjust enrichment for disgorgement of profits or revenues should be allowed. The Court noted:
In our view, the simple answer to that argument is that the profits or revenues earned by the respondents for which the appellant claims disgorgement are due to the operation of the regulatory scheme of the Patent Regulations. The respondents’ right to be in the market to the exclusion of the appellant and therefore to earn its profits or revenues is that provided for by the Patent Regulations. Those Regulations constitute a valid juristic reason for the respondents’ profits and revenues for the period in question. This precludes the appellant’s claim for disgorgement.
The appeal was dismissed.