Low v. Pfizer Canada Inc., 2014 BCSC 1469

Pfizer had a Canadian patent for VIAGRA® that was found to not comply with the disclosure requirement by the Supreme Court in an earlier PM(NOC) proceeding (Teva Canada Ltd. v. Pfizer Canada Inc., 2012 SCC 60).  This finding was later applied on summary judgment in favour of Apotex (Apotex v. Pfizer Ireland Pharmaceuticals, 2012 FC 1339) and upheld on appeal (Pfizer Ireland Pharmaceuticals v. Apotex Inc., 2014 FCA 13).  

The plaintiff in this proceeding now seeks to certify a class action against Pfizer. The plaintiffs allege that Pfizer wrongfully obtained and relied on a patent, which inflated the price of VIAGRA® by delaying the introduction of competing generic versions.
The only issue on this application was whether the plaintiff’s claim discloses a cause of action for the purposes of certification.  The three causes of action pleaded were:

  1. unlawful interference with economic relations;
  2. waiver of tort; and
  3. unjust enrichment.

The Court found that subsection 55.2(4) of the Patent Act and the PM(NOC) Regulations do not govern the rights of actions of consumers.  So it was held that while the statutes do not create a right of action for consumers, neither do they bar an action by consumers if the conduct that was in breach of statute is also relevant to a common law cause of action.  

In the result, the Court found a cause of action for the claims to unlawful interference with economic relations and for unjust enrichment.  The other s.4(1) requirements for certification still need to be addressed in a further application.