Digests

Apotex Inc. v. Eli Lilly and Co.

T-320-01

2004 FC 502, Heneghan J.

31/3/04

35 pp.

Action for damages as result of delay in getting into market with nizatidine capsules caused by defendants' prohibition proceedings which were finally dismissed by Supreme Court of Canada (S.C.C.)--Defendant Lilly US seeking order striking out action against it, and defendant Lilly Canada seeking order dismissing action with respect to claim for unjust enrichment--Patented Medicines (Notice of Compliance) Regulations, s. 8 provide first person liable to second person for loss where application for prohibition dismissed or order of prohibition reversed on appeal--S. 2 defining "court", "first person", "notice of compliance", "patent list", "second person"--"First person" party seeking order of prohibition to prevent Minister of Health from issuing notice of compliance (NOC)--Regulations part of administrative scheme governing licensing of pharmaceutical products for therapeutic use--Purporting to provide right to second person, such as Apotex, to claim compensation if prohibition proceeding commenced by first person either discontinued or ultimately dismissed--Here, prohibition proceedings ultimately dismissed by S.C.C.--Question arising here: who is "first person" for purposes of Regulations-- Principles concerning grant of summary judgment summarized in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.)--Both defendants arguing Court lacks jurisdiction to entertain claim for unjust enrichment because outside jurisdiction conferred by Federal Courts Act, s. 20--Further, Lilly US arguing action not lying against it because not "first person" as defined in Regulations--Federal Court statutory court whose jurisdiction defined by Federal Courts Act-- Jurisdiction not limited to examining whether Court has jurisdiction over particular subject matter but also includes question of jurisdiction over parties--Plaintiff bases cause of action against defendant Lilly US upon Regulations, s. 8-- Must show defendant meets criteria set out in Regulations-- As to maintenance of action against Lilly US, plaintiff submits this motion on behalf of Lilly US should be dismissed because question involves contentious issues of statutory interpretation and further, matter already argued, unsuccessfully--Apotex says question of meaning of "first person" already dealt with in this action, albeit in context of motion to strike and motion to amend statement of claim--Argues no good reason shown by Lilly US to justify different result in this motion and this Court should follow earlier rulings where Court concluded question complex one to be resolved by trial judge after hearing all evidence--Prior decisions distinguishable from present motion--First, Lilly US brought motion to strike statement of claim on basis not proper party since not "first person"--Test upon motion to strike pleadings strict, i.e. whether plain and obvious claim discloses no reasonable cause of action--Motion to amend highly discretionary matter involving issues and criteria different from those arising on motion for summary judgment--As plaintiff's action grounded in Regulations, must show Lilly US proper party within meaning of Regulations, s. 8--Process involved in obtaining NOC and delay encountered by Apotex in obtaining NOC for pharmaceutical product heart of this action--Even assuming allegation of control of Lilly Canada by Lilly US substantiated, does not change fact plaintiff pursuing regulatory cause of action, not common law cause of action, and must show Lilly US "first person" within s. 8--According to definition, first person party to whom NOC issued--Lilly US not "first person" within meaning of definition and not proper party to action--Lilly US's motion for summary judgment granted--As to jurisdiction over claim for unjust enrichment, Lilly Canada arguing claim for unjust enrichment beyond scope of claims adjudicated in this Court--Further submitting on facts alleged by plaintiff, no claim for unjust enrichment arises, having regard to legal requirements establishing such claim--Arguments about availability of claim for unjust enrichment in context of s. 8 raising interesting questions--However, meaning and scope of s. 8, in particular in relation to claim for unjust enrichment, should not be decided upon motion for summary judgment--Here, no "strong reasons" or sufficient evidence justifying exercise of discretion in favour of Lilly Canada in respect of plaintiff's claim for unjust enrichment--Lilly Canada's motion for summary judgment dismissed--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 2 "court", "first person", "notice of compliance", "patent list", "second person", 8 (as am. by SOR/98-166, s. 8)--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 20 (as am. by S.C. 1990, c. 37, s. 34; 2002, c. 8, s. 29).