On December 8, 2015, the British Columbia Court of Appeal (BCCA), reversed a judge’s ruling that a proposed class action relating to sildenafil (VIAGRA), based on Pfizer’s unsuccessful litigation under the Patented Medicines (Notice of Compliance) Regulations (PMNOC Regulations), disclosed a cause of action sufficient for the purposes of certification under the province’s Class Proceedings Act (CPA): Low v Pfizer Canada Inc, 2015 BCCA 506. (See our article regarding the BC Supreme Court’s August 5, 2014 decision here.)
The members of the proposed class are British Columbia residents who purchased VIAGRA between dates approximating the period from an allegation by Teva under the PMNOC Regulations, to the Supreme Court of Canada’s decision in Teva Canada Ltd v Pfizer Canada Inc, 2012 SCC 60 that dismissed Pfizer’s prohibition application and held Teva to have established its allegation of invalidity of Canadian Patent No. 2,163,446. The test to meet under the CPA is whether it is plain and obvious that the claim cannot succeed, assuming all facts pleaded to be true.
The BCCA found that the patent regulatory regime constitutes a complete code that forecloses parallel civil actions by consumers that are rooted in a breach of the Patent Act. The judge had erred in concluding that while the statute does not confer any rights or remedies directly for consumers, it does not explicitly or by implication bar action if conduct in breach of the statute is also relevant to a common law cause of action. As found by the BCCA, Parliament has comprehensively legislated in the area of patent law and it was wrong to upset the balance that Parliament has struck in the patent system by expanding the scope of available remedies.
The BCCA also found the judge erred in allowing certification of a claim based on the tort of unlawful intentional interference with economic relations. The plaintiff claimed damages based on the difference between the price class members paid for VIAGRA and the lower price they would have paid if generic sildenafil had been available. The plaintiff’s allegation was that Pfizer (through its breach of the Patent Act), committed an unlawful act against generic manufacturers, which was intended to and in fact caused economic harm to VIAGRA purchasers. The BCCA found, however, that the parasitic claim could not succeed because a generic manufacturer itself has no actionable claim outside the PMNOC Regulations. Under the jurisprudence, a generic manufacturer is only able to make a claim for its own losses under the PMNOC Regulations. In other words, if Pfizer has no liability to Teva outside section 8 of the PMNOC Regulations, it follows that Pfizer cannot be liable to a consumer for the same conduct.
The BCCA further found that the judge erred in allowing the claim based on unjust enrichment. Even if the Court did not consider the patent regulatory regime to be a complete code, the Court found the existence of at least one juristic reason that would deny recovery. Interpreting the judge to have found contracts between Pfizer and direct purchasers to constitute a juristic reason, the BCCA found the judge should have found the claim had no prospect of success.
An appeal is only available with leave from the Supreme Court of Canada.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.