Case information
Conduct a refined search of the Supreme Court of Canada database to obtain details on the status of a matter before the Court.
40420
Apotex Inc., et al. v. Eli Lilly Canada Inc., et al.
(Ontario) (Civil) (By Leave)
(Sealing order)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2023-06-09 | Close file on Leave | |
| 2023-04-27 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2023-04-27 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgments of the Court of Appeal for Ontario, Number C69320, 2022 ONCA 587, dated August 16, 2022 and 2022 ONCA 620, dated August 29, 2022, is dismissed with costs. Dismissed, with costs |
|
| 2023-03-20 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2022-12-12 | Certificate (on limitations to public access), (Letter Form), (Printed version filed on 2022-12-13) | Apotex Inc. |
| 2022-12-12 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2022-12-12, (Printed version filed on 2022-12-13) | Apotex Inc. |
| 2022-11-30 | Notice of name, (Letter Form), (Printed version due on 2022-12-07) | Eli Lilly Canada Inc. |
| 2022-11-30 | Certificate (on limitations to public access), (Letter Form), 23B, (Printed version filed on 2022-12-05) | Eli Lilly Canada Inc. |
| 2022-11-30 | Certificate (on limitations to public access), (Book Form), 23A, (Printed version due on 2022-12-07) | Eli Lilly Canada Inc. |
| 2022-11-30 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2022-12-01, (Printed version filed on 2022-12-01) | Eli Lilly Canada Inc. |
| 2022-10-31 | Letter acknowledging receipt of an incomplete application for leave to appeal and without formal Court of Appeal order, FILE OPENED 2022-10-31 | |
| 2022-10-17 | Book of authorities, (Book Form), Completed on: 2022-10-31, (Printed version filed on 2022-10-20) | Apotex Inc. |
| 2022-10-17 | Certificate (on limitations to public access), (Letter Form), 23B, (Printed version filed on 2022-10-20) | Apotex Inc. |
| 2022-10-17 | Certificate (on limitations to public access), (Letter Form), 23A, (Printed version filed on 2022-10-20) | Apotex Inc. |
| 2022-10-17 | Notice of name, (Letter Form), (Printed version filed on 2022-10-20) | Apotex Inc. |
| 2022-10-17 |
Application for leave to appeal, (Book Form), Required: CA Order (Rec'd 2022-11-09), Completed on: 2022-11-21, (Printed version filed on 2022-10-20) |
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
| Name | Role | Status |
|---|---|---|
| Apotex Inc. | Applicant | Active |
| Apotex Pharmachem Inc. | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Eli Lilly Canada Inc. | Respondent | Active |
| Eli Lilly and Company | Respondent | Active |
| Eli Lilly and Company Limited | Respondent | Active |
| Eli Lilly SA | Respondent | Active |
Counsel
Party: Apotex Inc.
Counsel
Andrew Brodkin
Nando De Luca
Jerry P.K. Topolski
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, Ontario
M5H 2S7
Telephone: (416) 597-4142
Email: hradomski@goodmans.ca
Agent
50 O'Connor
Suite 300
Ottawa, Ontario
K1P 6L2
Telephone: (613) 231-8212
FAX: (613) 238-2098
Email: christopher.rootham@nelliganlaw.ca
Party: Apotex Pharmachem Inc.
Counsel
Andrew Brodkin
Nando De Luca
Jerry P.K. Topolski
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, Ontario
M5H 2S7
Telephone: (416) 597-4142
Email: hradomski@goodmans.ca
Agent
50 O'Connor
Suite 300
Ottawa, Ontario
K1P 6L2
Telephone: (613) 231-8212
FAX: (613) 238-2098
Email: christopher.rootham@nelliganlaw.ca
Party: Eli Lilly Canada Inc.
Counsel
Alex Gloorr
Rebecca Johnston
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8806
FAX: (613) 563-9869
Email: marc.richard@gowlingwlg.com
Agent
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com
Party: Eli Lilly and Company
Counsel
Alex Gloor
Rebecca Johnston
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8806
FAX: (613) 563-9869
Email: marc.richard@gowlingwlg.com
Agent
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com
Party: Eli Lilly and Company Limited
Counsel
Alex Gloor
Rebecca Johnston
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8806
FAX: (613) 563-9869
Email: marc.richard@gowlingwlg.com
Agent
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com
Party: Eli Lilly SA
Counsel
Alex Gloor
Rebecca Johnston
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8806
FAX: (613) 563-9869
Email: marc.richard@gowlingwlg.com
Agent
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0171
FAX: (613) 563-9869
Email: jeff.beedell@gowlingwlg.com
Summary
Keywords
Intellectual property — Patents — Medicines — Whether a patent found to be void can shield the patentee from liability for the harm caused by its unlawful enforcement? — Are causes of action created by federal and provincial statutes and by the common law incapable of redressing the manifest legal and commercial injustice of permitting the unlawful monopolist from retaining its ill-gotten, supra-competitive profits?
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.
(SEALING ORDER)
The applicants (collectively “Apotex”), a generic drug manufacturer, and the respondents (collectively, “Eli Lilly”), an innovator company, were engaged in litigation over Eli Lilly’s 113 Patent for the drug, Olanzapine, used to treat schizophrenia, anxiety and other disorders. The 113 Patent was declared void ab initio in 2011, in an action involving another generic manufacturer. Apotex was unsuccessful in its own prohibition proceedings against Eli Lilly under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, and could not claim s. 8 damages for delayed market entry. In this action, Apotex sought damages under the Statute of Monopolies, R.S.O. 1897, Ch. 323, the Trademarks Act, R.S.C. 1985, c. T-13, and the common law tort of civil conspiracy. Eli Lilly brought a motion for summary judgment to have this action dismissed.
The motion judge granted Eli Lilly’s motion. Eli Lilly was awarded partial indemnity costs. These decisions were upheld on appeal.
Lower court rulings
Ontario Superior Court of Justice
2021 ONSC 1588, CV-13-492419
Respondents’ motion for summary judgment granted; Applicants’ action dismissed.
Court of Appeal for Ontario
2022 ONCA 587, 2022 ONCA 620, C69320
Applicants’ appeal dismissed
Filed documents
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 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 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
Related links
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
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books 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 condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
Not available