In Low v. Pfizer Canada Inc. the British Columbia Court of Appeal accepted Pfizer’s argument that the Canadian patent regulatory regime does not provide the basis for a civil action by consumers based on alleged breaches of the patent regime. The Court found, in relation to a claim pertaining to Pfizer’s Viagra, that the patent regime conferred no rights on consumers, nor did the regime evince and intention to allow consumers to make claims. The Court accepted that 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. As a result, Mr. Low’s claim, which was based on the patent regime, was dismissed.
The decision arose in the context of a proposed class action 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 proposed class action followed a decision of the Supreme Court of Canada which held that Pfizer had not been entitled to prohibit a generic manufacturer from gaining market entry because the underlying patent had not provided the requisite disclosure required under the Patent Act. The decision can be found here: https://canlii.ca/t/gmf7t
While the determination that consumers had no claim 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 to fail.