Case: Britton Low v. Pfizer Canada Inc. et
al., 2015 BCCA 506
Drug: Viagra® (sildenafil citrate)
Nature of case: Successful appeal in the
context of a class certification motion from a decision of the
Supreme Court of British Columbia which found that tort and
resitutionary claims could be advanced by consumers in relation to
actions taken pursuant to the Patent Act, R.S.C. 1985, c.
P-4 and the Patented Medicines (Notice of Compliance)
Date of decision: December 12, 2015
The British Columbia Court of Appeal granted Pfizer's appeal
and dismissed the proposed class action.
Norton Rose Fulbright Canada LLP acted for Pfizer in this
In rendering its decision, the Court of Appeal accepted
Pfizer's argument that the Canadian patent regulatory regime
forecloses civil actions by consumers based on breaches of the
patent regime. The Court of Appeal found that the patent regime
conferred no rights on consumers, nor did the regime evince and
intention to allow consumers to make claims. Where Parliament has
comprehensively legislated in a particular area, as it has in
respect to patents, it was reasonable to infer that it did not
intend recovery to extend beyond those embodied in the regime. The
Court of Appeal accepted that it should not upset the balance that
Parliament had struck by expanding the scope of available
While this determination was a complete answer to the claims
being advanced, 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 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 statute. It was found that Pfizer's conduct
was not actionable outside the patent regulatory regime. Further,
having found that the contracts between Pfizer and purchasers of
Viagra were valid, a juristic reason existed to deny recovery to
the plaintiff and the claim in unjust enrichment was also destined
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. The class action followed a decision of the Supreme
Court of Canada which held that Pfizer was not entitled under the
Regulations to prohibit a generic manufacturer from
gaining market entry because the underlying patent had not provided
the requisite disclosure. On the basis of that decision, the
plaintiff in the proposed class action alleged that Pfizer
improperly obtained market exclusivity by "gaming" the
In the first instance the Supreme Court judge held that it was
not plain and obvious that the patent regime constituted a complete
statutory code in respect of the rights and remedies associated
with pharmaceutical patents. He further found that while the
pleadings did not disclose a cause of action in waiver of tort, it
was arguable that the plaintiff's allegations satisfied the
tests for unlawful interference with economic relations and unjust
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