Decision

HMQ v. APOTEX INC., 2017 FCA 73 (Trazodone*)

Justice Dawson; Justice Rennie; Justice Woods - 2017-04-06

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"For lengthy reasons cited as 2014 FC 1087, the Federal Court found Health Canada was liable in damages because its officials committed the torts of misfeasance in a public office and negligence. These conclusions were based on a finding that officials of Health Canada both deliberately and negligently failed to adhere to the terms of the settlement agreement referred to above. The Federal Court went on to find that Apotex’ damages should be reduced on the ground that Apotex had failed to mitigate its damages. The Federal Court dismissed the claim in contract because it found that the action was commenced outside the applicable limitation period. ... For the reasons which follow, I have concluded that the Federal Court committed a single error that warrants intervention by this Court: the Federal Court erred by concluding that Apotex failed to mitigate its loss. It follows that I would dismiss Health Canada’s appeal. I would allow Apotex’ appeal in part and vary paragraph one of the judgment of the Federal Court to read: 'Apotex is entitled to damages to be assessed on the basis set out in the reasons of the Federal Court issued on November 18, 2014, with the exception that Apotex did not fail to mitigate its damages.' In all other respects I would dismiss Apotex’ appeal and Health Canada’s cross-appeal."

Decision relates to:

 

Canadian Intellectual Property