In this action under section 8, Apotex claimed for, inter alia, disgorgement of revenues realized by Eli Lilly Canada Inc. ("Lilly") and characterized the claim as one for unjust enrichment. In 2009, Lilly successfully moved to strike that claim and the Prothonotary ruled that, as a matter of law, the remedy of disgorgement is not available under s. 8 of the Regulations. The Prothonotary also ruled that the Federal Court does not have jurisdiction to entertain a cause of action for unjust enrichment.

Apotex appealed that decision to a Judge of the Federal Court and argued that its claim for unjust enrichment is not based upon s. 8 of the Regulations. Instead, Apotex argued that its claim was independent of its cause of action under s. 8. Justice Heneghan reviewed section 20 of the Federal Courts Act and related cases regarding jurisdiction and ruled that there is no statutory grant of jurisdiction to award equitable remedies, such as unjust enrichment, in this case. The Court therefore rejected Apotex's argument that it could bring a claim for unjust enrichment independent of s. 8 of the Regulations. The Court relied upon the Federal Court of Appeal decision in Apotex Inc. v. Merck & Co., Inc. [2010] 2 F.C.R. 389 (F.C.A.) to conclude that it is plain and obvious that section 8 does not include a claim for unjust enrichment, or provide the Court with jurisdiction to grant the remedy of disgorgement for s. 8 claims.

The full text of the decision can be found at:

http://www.gowlings.com/knowledgeCentre/enewsletters/pharmacapsules/pdfs/T-656-09 - April 18, 2011.pdf