Global Pharmacy Canada ("GPC-Belize") sells drugs to
customers in the United States — the drugs are sourced
in India and never enter Canada. Advertising is done online and
through promotional materials distributed in the United States.
Although GPC-Belize is a Belize company, it has a contractual
agreement with an Ontario corporation, RX Processing Services Inc.
("RXP"), which takes customer orders, processes payments
for drugs, and ensures that the orders are filled in India and
shipped to customers, all out of its call and processing facilities
in Mississauga, Ontario.
The Ontario College of Pharmacists (the "College") is
entrusted with policing violations of Ontario legislation
regulating the retail sale of prescription drugs in
The College sought and obtained an injunction preventing, inter
alia, GPC-Belize and RXP from selling by retail, prescription drugs
from any location in Ontario and to cease using the designated
terms "pharmacy," "drug" or "drugs"
in relation to their business.
The Ontario Court of Appeal described the statutory framework as
 The sale of prescription drugs in
Ontario is highly regulated. For example, all pharmacies
– meaning all premises from which drugs are sold by retail
– must be accredited: see ss. 1(1) and 139, DPRA. Only a registered pharmacist can
own or operate a pharmacy: see ss. 142 and 144, DPRA. Further, drugs can only be sold by
certain qualified individuals under specific conditions: see ss. 27(1) and 27(2)(8), RHPA; s. 149, DPRA.
 The College is tasked with the
regulation of drugs and pharmacies in accordance with the DPRA: see s. 6, PA. It is also responsible for
regulating the practice of the pharmacy profession and governing
its members in accordance with the RHPA, the PA, the Code, and any regulations passed
thereunder: see s. 3(1), the Code. This includes the
establishment, development and maintenance of standards of
practice, professional ethics, and qualifications required of those
operating pharmacies and acting as pharmacists within the province:
see s. 3(1), the Code; s. 6, PA. In carrying out its legislative
objects, the College is required to serve and protect the public
interest: see s. 3(2), the Code.
There were two issues on appeal: (1) did the sales of
prescription drugs take place in Ontario; and (2) did the College
have jurisdiction over the parties?
The Ontario Court of Appeal upheld the Applications Judge's
determination that the sale of prescription drugs takes place in
The Court of Appeal further found that the College properly
exercised its jurisdiction over the sales based on the sufficiency
of the connection between Ontario and the parties. The connection
was based on the factual findings that GPC-Belize and RXP do not
operate separately and that RXP acts as GPC-Belize's agent. The
Court of Appeal noted that "[t]he College is not overreaching
– it is fulfilling its legislated duty to serve and protect
the public interest" with regard to the sales of prescription
drugs in Ontario pursuant to section 3(2) of the Health
Professionals Procedural Code, which is a Schedule to the Regulated
Health Professionals Act. The Court of Appeal further noted that
"[if] a company trades on Ontario's reputation for quality
and strong regulatory standards, and sites [sic] a critical part of
the sales process in Ontario, it is subject to Ontario's
Ontario College of Pharmacists v 1724665 Ontario Inc (Global
Pharmacy Canada), June 10, 2013.
Ontario Superior Court Decision – 2012 ONSC 4295.
Ontario Court of Appeal Decision – 2013 ONCA 381.
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
informational only and does not constitute legal or professional
advice. To obtain such advice, please communicate with our offices
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Abbott Laboratories Limited, Takeda Pharmaceuticals Company Limited and Takeda Pharmaceuticals America Inc. (collectively, the Defendants) sought summary judgment of Apotex Inc.'s action for damages pursuant to section 8 of the Regulations.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).