Apotex v. Schering Corporation et al, 2013 ONSC 1411

Drug: ramipril

In this action, Apotex is suing for additional damages, including treble damages and an accounting of Sanofi’s profits, pursuant to inter alia, the UK Statute of Monopolies, the Ontario Statute of Monopolies, and the Trade-Marks Act. Apotex has already been awarded damages in Federal Court pursuant to s. 8 of the NOC Regulations (decision here, summary here). That decision is currently being appealed to the Federal Court of Appeal. All of these claims are alleged to stem from Apotex being delayed in entering the market with its Apo-Ramipril product as a result of proceedings brought pursuant to the NOC Regulations.

Sanofi brought the within motion to strike the Statement of Claim or, in the alternative, stay the within proceeding pending the appeal of the Federal Court action. Prior to the hearing of the motion, Sanofi advised that it wished to argue only the motion to strike, due to the recent decision of the Court in a similar case (decision here, summarized here, appeal upheld, summarized here). The Court refused that request, and ordered the parties to argue the motion to stay the proceedings.

The Court then held that the proceeding should be temporarily stayed, pending the outcome of the appeal of the Federal Court action. In addition, the Court held that the mere fact that s. 8 damages were awarded does not preclude the possibility of recovery of further damages in the present case. Any amount awarded to Apotex in the s. 8 proceeding may be a factor in taking into account how much more, if any, damages should be awarded in the present case.