Ontario Court of Appeal denies generic pharmaceutical company's claim for innovator's profits

Apotex Inc. v. Eli Lilly and Company, 2015 ONCA 305

On May 5, 2015, the Ontario Court of Appeal denied a generic pharmaceutical company’s claim for unjust enrichment. This was an appeal by Apotex Inc. from a Divisional Court decision to grant a motion by Eli Lilly and Company and Eli Lilly Canada Inc.’s (“Lilly”) to strike Apotex’s claim for unjust enrichment from the sales of a drug used to treat Attention Deficit Hyperactivity Disorder.

In a unanimous judgment, the Court dismissed the appeal, finding that Apotex’s claim did not satisfy the Supreme Court of Canada’s test for unjust enrichment because there was no deprivation of Apotex that corresponded to an enrichment of Lilly.

Patrick Smith and Todd Burke of Gowlings appeared for Lilly in these proceedings.