ONCA Affirms that Disgorgement of Profits in NOC S 8 Claim Not Available in Ontario

Apotex Inc v Abbott Laboratories Ltd 2013 ONCA 555 Goudge JA: Watt, Pepall JJA aff’g 2013 ONSC 356, 107 CPR(4th) 332 Quigley J

The FCA has held definitively that disgorgement of the patentee’s profits is not available as a remedy in a claim under s 8 of the NOC Regulations: 2011 FCA 358 blogged here. Hoping to circumvent this holding, Apotex turned to the Ontario courts, seeking a disgorgement of the profits made by Abbott while Apotex had been kept out of the market by operation of the NOC Regulations. In brief reasons, the ONCA has now affirmed Quigley J’s lengthy summary judgment decision (blogged here) that this claim must fail, primarily on the basis that the operation of the NOC Regulations constitutes a valid juristic reason for Abbott’s profits [6].