Apotex v. Abbott

Drug: lansoprazole

Apotex sued Abbott and Takeda for damages pursuant to s. 8 of the NOC Regulations. As part of the claim, Apotex claimed disgorgement of profits. Abbott and Takeda brought the within motion for summary judgment dismissing that part of the claim, and the Ontario Superior Court of Justice granted that motion.  

In the prior litigation pursuant to the NOC Regulations, the parties had settled, and Apotex reserved its rights to claim damages under s. 8. In addition, specific dates for compensation were negotiated. The Court held that nothing in that agreement permits Apotex to start a claim for unjust enrichment. However, the contract issues were held to be peripheral to the within motion.  

The Court considered issues of jurisdiction and held that the Federal Court (FC) has all the powers of the Superior Court when dealing with subject-matter that is within its jurisdiction. Thus, the equitable jurisdiction of the Superior Court is not broader than that of the FC. The Court then held that the factual record was complete, and it was possible to have a full appreciation of the evidence and issues. Thus, it was both possible and appropriate to determine the matter by summary judgment.  

The Court then analyzed the jurisprudence of the FC and Federal Court of Appeal (FCA), and the amendments made to the NOC Regulations and held that the FCA decision in Eli Lilly was well-reasoned and should be followed for a number of reasons.  

The Court went on to consider the test for unjust enrichment. Abbott and Takeda conceded for the purposes of this analysis that they had been enriched and that Apotex had experienced a corresponding deprivation. However, they argued that there was a juristic reason for the enrichment and the Court agreed. Validly enacted statutes or regulations constitute a juristic reason for enrichment within this test. Furthermore, in this case, the settlement agreement between the parties constitutes another juristic reason for the enrichment.