On March 8, 2021, the Ontario Superior Court of Justice dismissed a claim brought by Apotex for treble damages and an accounting of the innovative defendants' profits brought under the Statute of Monopolies, the Trademarks Act, and at common law. This is the first final decision issued in a series of similar cases currently before the Ontario and Quebec Superior Courts.

In litigation under Canada's Patented Medicines (Notice of Compliance) Regulations, Eli Lilly successfully resisted allegations of invalidity made by Apotex before the Federal Court in respect of Eli Lilly's "113 Patent" covering (inter alia) the compound olanzapine, the active ingredient in ZYPREXA®. The Federal Court thus issued an order prohibiting Apotex from selling generic olanzapine (2007 FC 455). Subsequently, certain claims of the 113 Patent were invalidated in an impeachment action involving Eli Lilly and Novopharm.

In 2013, Apotex commenced the within proceeding, alleging that Eli Lilly's invocation of the 113 Patent in the earlier prohibition proceedings violated the UK and Ontario Statutes of Monopolies, sections 7(a) and (d) of the Trademarks Act, and amounted to an unlawful conspiracy. As a remedy, Apotex sought treble damages and an accounting of Eli Lilly's profits.

In this motion, Eli Lilly sought summary judgment on two primary grounds:

1. That Apotex's claim was barred by the Limitations Act, 2002; and

2. That any harm allegedly suffered by Apotex was caused by the operation of the PM(NOC) Regulations and the Court Order in the earlier prohibition proceeding, and that any damages recoverable by Apotex for being kept off the olanzapine market are confined to those available under s. 8 of the PM(NOC) Regulations.

In a first for these Statutes of Monopolies claims, the Court granted summary judgment and dismissed the entirety of Apotex's claim. Schabas J. held that Apotex was only kept out of the market (if at all) by operation of law, with the Patent Act and PM(NOC) Regulations constituting a complete code governing the issuance, use, and available remedies in respect of patents of invention. Schabas J. held that Eli Lilly was legally entitled to the steps it took, and that granting the remedies sought by Apotex would undermine Parliament's carefully crafted balancing of the interests of all involved stakeholders.

While the Court "reluctantly" dismissed Eli Lilly's Limitations Act argument, it also individually considered each of the three causes of action asserted by Apotex and found none to be tenable.

In the result, Eli Lilly's motion for summary judgment was granted. Eli Lilly was represented by Gowling WLG's Marc Richard, Alex Gloor and Rebecca Stiles.

Read our detailed case commentary.