Pharma in brief - British Columbia Court of Appeal finds that consumer claims based on alleged breaches of the Canadian patent regime are prohibited

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Publication December 2015

Case: Britton Low v. Pfizer Canada Inc. et al., 2015 BCCA 506

Drug: Viagra® (sildenafil citrate)

Nature of case: Successful appeal in the context of a class certification motion from a decision of the Supreme Court of British Columbia which found  that tort and resitutionary claims could be advanced by consumers in relation to actions taken pursuant to the Patent Act, R.S.C. 1985, c. P-4 and the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133.

Date of decision: December 12, 2015

Summary

The British Columbia Court of Appeal granted Pfizer’s appeal and dismissed the proposed class action.

Norton Rose Fulbright Canada LLP acted for Pfizer in this appeal.

In rendering its decision, the Court of Appeal accepted Pfizer’s argument that the Canadian patent regulatory regime forecloses civil actions by consumers based on breaches of the patent regime.  The Court of Appeal found that the patent regime conferred no rights on consumers, nor did the regime evince and intention to allow consumers to make claims. Where Parliament has comprehensively legislated in a particular area, as it has in respect to patents, it was reasonable to infer that it did not intend recovery to extend beyond those embodied in the regime. The Court of Appeal accepted that it should not upset the balance that Parliament had struck by expanding the scope of available remedies.

While this determination was a complete answer to the claims being advanced, the Court of Appeal went on to find that the specific claims for unlawful interference with economic relations and unjust enrichment did not disclose a legal claim.  In respect of the tort claim, the Court found that a breach of a statute will only satisfy the “unlawful means” element of intentional interference with economic relations if it is actionable outside the context of the statute.  It was found that Pfizer’s conduct was not actionable outside the patent regulatory regime.  Further, having found that the contracts between Pfizer and purchasers of Viagra were valid, a juristic reason existed to deny recovery to the plaintiff and the claim in unjust enrichment was also destined to fail.

The proposed class action had been brought by an individual consumer alleging that he, and other class members, were entitled to damages based on alleged overcharges for their branded Viagra prescriptions.  The class action followed a decision of the Supreme Court of Canada which held that Pfizer was not entitled under the Regulations to prohibit a generic manufacturer from gaining market entry because the underlying patent had not provided the requisite disclosure.  On the basis of that decision, the plaintiff in the proposed class action alleged that Pfizer improperly obtained market exclusivity by “gaming” the patent system.  

In the first instance the Supreme Court judge held that it was not plain and obvious that the patent regime constituted a complete statutory code in respect of the rights and remedies associated with pharmaceutical patents.  He further found that while the pleadings did not disclose a cause of action in waiver of tort, it was arguable that the plaintiff’s allegations satisfied the tests for unlawful interference with economic relations and unjust enrichment.

Link to decision

Britton Low v. Pfizer Canada Inc., et al. 2015 BCCA 506


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