Recently, the Supreme Court denied Apotex’ leave application for leave to appeal to the Supreme Court of Canada in respect of Apotex’ case seeking damages for alleged delays due to a proceeding brought by Merck under the Patented Medicines (Notice of Compliance Regulations) (“NOC Regulations”). At trial Merck was successful in arguing that Apotex was limited to its damages, but the trial judge found that Apotex could claim for losses of future market share. Both parties appealed.

The Court of Appeal dismissed Apotex’ appeal and affirmed that Apotex cannot claim Merck’s profits. Profits, in the context of the section and the NOC Regulations deals with the second person’s damages or lost profits. The scheme does not contemplate disgorgement of the first person’s profits but rather is for compensation.

Merck’s appeal insofar as the ability to claim future market share was granted. Only damages during the s. 8 period may be claimed. The governor in council chose to limit losses to those during the period. They could have extended this period but did not. Merck had also argued that s. 8 was ultra vires however the Court dismissed this aspect. We have previously reported on the Merck Court of Appeal decision at the following link.

http://www.gowlings.com/resources/enewsletters/pharmacapsules/Htmfiles/V8N07_20090605.en.html .