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Case information

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36538

Apotex Inc. v. Eli Lilly and Company and Eli Lilly Canada Inc.

(Ontario) (Civil) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2016-03-17 Correspondence (sent by the Court) to, the applicant. Returning the motion for reconsideration that was submitted on March 1, 2016. Letter signed by the Registrar.
2016-01-19 Close file on Leave
2016-01-15 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2016-01-15 Judgment on leave sent to the parties
2016-01-14 Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C58293, 2015 ONCA 305, dated May 5, 2015, is dismissed with costs.
Dismissed, with costs
2015-10-26 All materials on application for leave submitted to the Judges, Cro Wa Côt
2015-09-21 Book of authorities, (Book Form), in support of leave application Apotex Inc.
2015-09-14 Applicant's reply to respondent's argument, (Book Form), Completed on: 2015-09-14, (Electronic version due on 2015-09-21) Apotex Inc.
2015-09-04 Notice of name, (Letter Form), (Electronic version filed on 2015-09-14) Eli Lilly and Company and Eli Lilly Canada Inc.
2015-09-04 Certificate (on limitations to public access), (Electronic version filed on 2015-09-14) Eli Lilly and Company and Eli Lilly Canada Inc.
2015-09-04 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2015-09-04, (Electronic version filed on 2015-09-14) Eli Lilly and Company and Eli Lilly Canada Inc.
2015-09-01 Correspondence received from, (Letter Form), from counsel for the applicant re: additional decision from the Ontario Superior Court of Justice, (Electronic version filed on 2015-09-01) Apotex Inc.
2015-08-25 Book of authorities Apotex Inc.
2015-08-05 Letter acknowledging receipt of a complete application for leave to appeal, File opened on 2015-08-05
2015-08-04 Certificate (on limitations to public access), (Letter Form), (Electronic version filed on 2015-08-04) Apotex Inc.
2015-08-04 Notice of name, (Letter Form), (Electronic version filed on 2015-08-04) Apotex Inc.
2015-08-04 Application for leave to appeal, (Book Form), CA orders received 2015-12-30, Completed on: 2015-12-31, (Electronic version filed on 2015-08-04) Apotex Inc.

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
Apotex Inc. Applicant Active

v.

Main parties - Respondents
Name Role Status
Eli Lilly and Company and Eli Lilly Canada Inc. Respondent Active

Counsel

Party: Apotex Inc.

Counsel
Harry B. Radomski
Goodmans LLP
3400 - 333 Bay Street
Toronto, Ontario
M5H 2S7
Telephone: (416) 979-2211
FAX: (416) 979-1234
Email: hradomski@goodmans.ca
Agent
Christopher Rootham
Nelligan O'Brien Payne LLP
1500-50 O'Connor Street
Ottawa, Ontario
K1P 6L2
Telephone: (613) 231-8311
FAX: (613) 788-3667
Email: christopher.rootham@nelligan.ca

Party: Eli Lilly and Company and Eli Lilly Canada Inc.

Counsel
Patrick S. Smith
Gowling WLG (Canada) LLP
Suite 2600
160 Elgin Street
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0245
FAX: (613) 563-9869
Email: patrick.smith@gowlingwlg.com
Agent
Matthew Estabrooks
Gowling WLG (Canada) LLP
2600 - 160 Elgin Street
P.O. Box 466, Stn. A
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0211
FAX: (613) 788-3573
Email: matthew.estabrooks@gowlingwlg.com

Summary

Keywords

None.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Intellectual property – Patents – Medicines – Civil procedure – Pleadings – Motion to strike – Respondents seeking to strike portions of applicant’s statement of claim pertaining to claims for unjust enrichment and disgorgement of respondents’ profits as remedy for wrongful market exclusion – Whether there is a single cause of action for unjust enrichment that encompasses “restitution for wrongs” line of cases, or is that cause of action confined to “subtraction” cases involving “transfer of wealth” from plaintiff to defendant – Whether decision also raises issue of extent to which tripartite conceptualization of “unjust enrichment’ should be applied to profit from wrongdoing cases, and if so how.

The Respondents (collectively, “Eli Lilly”) owned the ‘735 patent relating to the use of atomexetine hydrochloride in the treatment of Attention Deficit Hyperactivity Disorder. Eli Lilly received its Notice of Compliance (“NOC”) in 2004 and entered the market as sole supplier of the medicine. In 2008 Apotex Inc. (“Apotex”) developed its generic version of the drug and sought to obtain a NOC to also enter the market. It served Eli Lilly with a Notice of Allegation under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (“Regulations”), claiming that the ‘735 patent was invalid on the grounds of anticipation, obviousness and inutility. Eli Lilly commenced a proceeding under the Regulations, seeking an order to prohibit the issuance of a NOC to Apotex, triggering the statutory stay and effectively keeping Apotex from gaining market entry for a period of two years. Meanwhile, in another proceeding, the ‘735 patent was declared to be invalid for want of disclosure. As a result, Eli Lilly’s prohibition application in the within action was dismissed. Apotex claimed damages against Eli Lilly under s. 8 of the Regulations for losses suffered as a result of its exclusion from the market during the prohibition period from October 10, 2008 to September 21, 2010. Apotex sought relief, inter alia, pursuant to unjust enrichment principles, for disgorgement of Eli Lilly’s profits earned during the period of market exclusion.

Lower court rulings

February 22, 2012
Ontario Superior Court of Justice

2013 ONSC 1135

Respondents’ application for leave to appeal order regarding claim for unjust enrichment granted.

September 19, 2013
Ontario Superior Court of Justice

379/12, 2013 ONSC 5937

Respondents’ appeal allowed; Apotex’s claim for unjust enrichment struck from statement of claim.

May 5, 2015
Court of Appeal for Ontario

C58293, 2015 ONCA 305

Apotex’s appeal dismissed.

Memorandums of argument on application for leave to appeal

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

Not available

Factums on appeal

The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

Downloadable PDFs

Not available

Webcasts

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Date modified: 2025-02-27