The Patented Medicine Prices Review Board (the PMPRB) ordered Teva to pay the Crown approximately $2.4 million for selling its product at an excessive price between 2004 and 2010. Teva brought an application for judicial review of this decision, and the Federal Court sent the issue back to the PMPRB for redetermination on the basis that the PMPRB did not consider all the factors in determining whether the pricing was excessive, but instead focused on only one factor, namely the Consumer Price Index (CPI). The PMPRB made a second determination that Teva was to pay approximately $2.8 million for excessive pricing. The present decision relates to a review of this second decision of the PMPRB.

The Court noted that the PMPRB set out the factors set out in section 85(1) of the Patent Act. The PMPRB determined the pricing was excessive on the basis of price increases over the years, although noted that the product was the lowest priced medicine relative to its comparators.

The Court found that the PMPRB did not fully consider the factors that favoured a finding of non-excessive pricing and focused on the CPI. The Court also found that the PMRPB erroneously interpreted section 85(1). In particular, the Court found that Parliament provided protection from excessive pricing, not from price increases, and the CPI is only one factor to consider. The Court set aside this second decision of the PMPRB and returned the issue for redetermination by a differently constituted panel.