



COURT OF APPEAL FOR ONTARIO

CITATION: Apotex Inc. v. Abbott Laboratories,
    Limited, 2013 ONCA 555

DATE: 20130912

DOCKET: C56603

Goudge, Watt and Pepall JJ.A.

BETWEEN

Apotex Inc.

Plaintiff (Appellant)

and

Abbott Laboratories, Limited, Takeda
    Pharmaceuticals Company Limited, and Takeda Pharmaceuticals America, Inc.

Defendants (Respondents)

AND BETWEEN

Abbott Laboratories, Limited, Takeda
    Pharmaceuticals America, Inc., Takeda Pharmaceuticals North America, Inc., and
    Takeda Pharmaceuticals Company Limited

Plaintiffs
    by Counterclaim

and

Apotex Inc.

Defendant by Counterclaim

David Conklin and Daniel Cohen, for the appellants

Steven Mason and David Tait, for the respondent Abbott
    Laboratories, Limited

Christopher Van Barr, for the respondents Takeda
    Pharmaceutical Company Limited and Takeda Pharmaceuticals America Inc.

Heard: August 24, 2013

On appeal from the judgment of Justice Michael G. Quigley
    of the Superior Court of Justice, dated January 15, 2013.

ENDORSEMENT

[1]

The appellant appeals from the partial summary judgment dismissing its
    unjust enrichment claim for disgorgement of the respondents profits or
    revenues.

[2]

In this court, the appellant argued that it should be entitled to assert
    such a claim because at trial it may be determined that the Settlement Agreement,
    between the parties giving the Federal Court jurisdiction to award damages
    between September 2008 and May 2009 is unenforceable due to s. 8 of the Patented
    Medicines Regulations (Notice of Compliance) (the Patent Regulations).  If
    so, the appellant says that the trial judge should be able to make the
    disgorgement order sought to make up for its unenforceable right to damages.

[3]

In our view that argument must fail.  The appellant concedes that s.
    14(b) of the Settlement Agreement can give it no more than damages calculated
    according to s. 8 of the Patent Regulations up until May 2009.  The appellant
    also concedes that those damages do not include the disgorgement sought.

[4]

If the extension from September 2008 to May 2009 provided in the
    Settlement Agreement is unenforceable, the deprivation that the appellant
    suffered could be no more than their damages for that period calculated
    according to s. 8 of the Patent Regulations.  That deprivation cannot therefore
    extend to disgorgement by the respondents of their profits or revenues.

[5]

In its factum, the appellant argues more broadly that, despite the Patent
    Regulations, it should be entitled to pursue an unjust enrichment claim for
    disgorgement of the respondents profits or revenues.

[6]

In our view, the simple answer to that argument is that the profits or
    revenues earned by the respondents for which the appellant claims disgorgement
    are due to the operation of the regulatory scheme of the Patent Regulations. 
    The respondents right to be in the market to the exclusion of the appellant
    and therefore to earn its profits or revenues is that provided for by the Patent
    Regulations.  Those Regulations constitute a valid juristic reason for the
    respondents profits and revenues for the period in question.  This precludes
    the appellants claim for disgorgement.

[7]

In the end, both arguments fail.  The appeal must be dismissed.

[8]

Costs to the Abbott respondent in the amount of $25,000 in total, and to
    the Takeda respondents $15,000 in total.

S.T.
    Goudge J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


