Thursday, November 1, 2012

Leave to SCC Denied re Damages after Compensable Period

The SCC has denied Teva’s application for leave to appeal in Teva Canada Ltd v Nycomed Canada Inc 2012 FCA 129, in which the FCA reaffirmed that in a claim for damages under section 8 of the NOC Regulations, losses incurred by a generic after the end of the compensable period are not recoverable, even if the losses were caused by the statutory stay (blogged here). The FCA held that the issue “is now settled at the level of this Court,” [7] and “Teva's remedy is to apply again for leave to appeal to the Supreme of Court of Canada” [11]. Denial of leave does not imply that the SCC is of the view that the decision appealed from was correctly decided, as the primary criteria for granting leave is the “public importance” of the issue, but the SCC has now denied leave twice on this issue under the new Regulations, and once under the old Regulations (see the FCA decision). It therefore appears very unlikely that this question will be addressed by the SCC, unless it is raised as a subsidiary issue in a case in which leave is granted on the basis of some other question. As a practical matter, then, this point is now settled, barring amendment to the Regulations.

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