Case:Britton Low v. Pfizer Canada Inc. et
al, 2015 BCCA 506, rev'g 2014 BCSC 1469, leave to appeal
to SCC refused, 36848
Drug: VIAGRA® (sildenafil citrate)
Nature of case: Application for Leave to Appeal to
Supreme Court of Canada
Successful party: Pfizer Canada Inc.
Date of decision: June 09, 2016
The Supreme Court of Canada dismissed an application for leave
to appeal in respect of a proposed consumer class action seeking
damages allegedly arising from an innovator's use of the
PM(NOC)Regulations. The proposed class action
had been dismissed by the British Columbia Court of Appeal in late
2015, and we previously reported on the BCCA's decision
here. Norton Rose Fulbright Canada LLP acted for the defendants
in this matter at the various stages of the proceeding.
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 which arose as a result of failed PM(NOC)
The British Columbia Court of Appeal had dismissed the class action
on the basis that the Canadian patent regulatory regime constituted
a complete code and nothing in the regime conferred rights on
consumers or evinced any intention to allow consumers to make
claims. Therefore, parallel common law actions founded on a breach
of the provisions of the relevant statutes were foreclosed.
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 of Appeal 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 statutes. It was found that the innovator's conduct was not
actionable outside the Canadian patent regulatory regime. In
respect of the unjust enrichment claim, the Court of Appeal found
that contracts of purchase and sale between the innovator and
purchasers of Viagra were a juristic reason to deny recovery to the
The Plaintiff sought leave to appeal to the Supreme Court of
Canada. Leave was denied by the Supreme Court of Canada. As is the
Supreme Court of Canada's usual practice, no reasons were
Norton Rose Fulbright is a global law firm. We provide the
world's preeminent corporations and financial institutions with
a full business law service. We have 3800 lawyers and other legal
staff based in more than 50 cities across Europe, the United
States, Canada, Latin America, Asia, Australia, Africa, the Middle
East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
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.
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).