Case: Britton Low v. Pfizer Canada Inc. et al, 2015 BCCA 506, rev’g 2014 BCSC 1469, leave to appeal to SCC refused, 36848
Drug: VIAGRA® (sildenafil citrate)
Nature of case: Application for Leave to Appeal to Supreme Court of Canada
Successful party: Pfizer Canada Inc.
Date of decision: June 09, 2016
The Supreme Court of Canada dismissed an application for leave to appeal in respect of a proposed consumer class action seeking damages allegedly arising from an innovator’s use of the PM(NOC) Regulations. The proposed class action had been dismissed by the British Columbia Court of Appeal in late 2015, and we previously reported on the BCCA’s decision here. Norton Rose Fulbright Canada LLP acted for the defendants in this matter at the various stages of the proceeding.
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 which arose as a result of failed PM(NOC) proceedings.
The British Columbia Court of Appeal had dismissed the class action on the basis that the Canadian patent regulatory regime constituted a complete code and nothing in the regime conferred rights on consumers or evinced any intention to allow consumers to make claims. Therefore, parallel common law actions founded on a breach of the provisions of the relevant statutes were foreclosed.
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 of Appeal 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 statutes. It was found that the innovator’s conduct was not actionable outside the Canadian patent regulatory regime. In respect of the unjust enrichment claim, the Court of Appeal found that contracts of purchase and sale between the innovator and purchasers of Viagra were a juristic reason to deny recovery to the plaintiff.
The Plaintiff sought leave to appeal to the Supreme Court of Canada. Leave was denied by the Supreme Court of Canada. As is the Supreme Court of Canada’s usual practice, no reasons were provided.