Apotex’s Unjust Enrichment Claim Fails Based Upon Operation of the PM(NOC) Regulatory Regime

Apotex’s Unjust Enrichment Claim Fails Based Upon Operation of the PM(NOC) Regulatory Regime

Apotex Inc. v Abbot
Laboratories Ltd. Takeda Pharmaceuticals Company Ltd. And Takeda
Pharmaceuticals America Inc. 

2013 ONCA 555

 

Apotex appealed the dismissal of its unjust enrichment
claim for disgorgement of the respondents’ profits or revenues.[1]

 

The appellant argued that it should be entitled to assert
the claim since the settlement agreement granting the Federal Court
jurisdiction to award damages is unenforceable due to s.8 of the PM(NOC)
regulations. In argument appellant agreed that they could obtain no more
damages than contemplated by s. 8 of the PM(NOC) Regulation and that those
damages do not include the disgorgement sought.

 

The Court states that the profits or revenues earned by
the respondent for which disgorgement is sought are due to the operation of the
PM(NOC) regulatory scheme. The respondent’s right to participate in the market
to the exclusion of the appellant is provided for by the PM(NOC) Regulation. The
PM(NOC) Regulation represents a “valid juristic reason for the respondents’
profits and revenues for the period in question”.[6]

 

Apotex’s appeal was dismissed.