Apotex Denied Claim For Innovator's Profits Following PM(NOC) Litigation

The ongoing quest by generic pharmaceutical companies for the disgorgement of innovator profits following litigation under the PM(NOC) Regulations (the "Regulations") has hit a potentially fatal roadblock.

In unanimous reasons dated May 5, 2015 the Ontario Court of Appeal (OCA) held that an unjust enrichment claim made by a generic seeking an innovator's profits did not satisfy the Supreme Court of Canada's test for unjust enrichment because there was no deprivation of the generic company that corresponded to an enrichment of the innovator.¹ The OCA's reasons apply even in situations where unjust enrichment claim is made outside the Regulations.

Facts in Brief

This was an appeal by Apotex from a Divisional Court decision to grant Lilly's motion to strike Apotex's claim for unjust enrichment. As a motion to strike, the facts as set out in Apotex's Statement of Claim are assumed to be true. The relevant facts asserted in Apotex's statement of claim were that