The Court dismissed the plaintiff's motion to amend its
Statement of Claim to add a number of allegations relating to
unjust enrichment in conjunction with its Competition Act
The Court held that the Competition Act provides a
civil remedy whereby a person can be compensated for actual loss or
damage. It does not provide a vehicle for the recovery of any
enrichment and cannot provide the basis for an equitable remedy.
Thus, the plaintiff's proposed claims were beyond the
The Court granted the defendant's motion for summary
judgment dismissing the part of the plaintiff's claim relating
to compensation pursuant to the Competition Act.
The Court held that a civil claim under the Competition
Act is subject to a two-year limitation period starting on the
date on which the conduct was engaged in. The Court then considered
the elements of the Competition Act claim as pleaded and
held that they occurred more than two years prior to the date of
the claim, and thus, were time barred and disclosed no reasonable
cause of action.
The plaintiff also tried to avoid the limitation period by
asserting the principle of discoverability. However, the Court held
that this principle does not apply when the limitation period and
the statute link to a fixed event unrelated to the injured
party's knowledge. Furthermore, even if discoverability was
applicable, the Court held that the claim would still be time
The plaintiff also tried to allege that the defendant was
engaged in a continuing cause of action such that there is no time
bar due to its continuation. However, the Court held that a
continuing offence would require ongoing acts that are in
themselves an offence under the Competition Act and there
was no evidence of that in this case.
Finally, the Court dismissed the argument that there should be
no application of a limitation period as long as the plaintiff
continues to suffer damage as a result of the impugned conduct.
Shire brought a motion to amend its pleadings to include as a
defence that Apotex should be precluded from recovering damages in
its action pursuant to section 8 of the Patented Medicines
(Notice of Compliance) Regulations if there is a finding of
infringement in another court proceeding. A Prothonotary of the
Court refused to allow this amendment (summarized here). Shire appealed the Court
decision, however, a Motions Judge dismissed Shire's
The Court held that a cause of action cannot be properly
grounded when it pleads as a defence a collateral contingency
predicated on an unrelated proceeding. It is unreasonable to try to
insert into the action an allegation that cannot be resolved by the
Court hearing the matter and where the lis is not between the
parties before the Court. Furthermore, the Court held that a
pleading trying to import a separate proceeding involving different
parties is baldly deficient and should not be permitted.
APPEALS FROM DECISIONS OF THE COMMISSIONER OF PATENTS
The Federal Court recently redefined patentable subject matter
in Canada and allowed Amazon.com's appeal from a decision of
the Commissioner of Patents refusing to grant Amazon.com's
patent. A summary of the decision can be found in BLG's October 2010 Intellectual Property
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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