On
Background
The initial FC decision awarding Lilly roughly
On reconsideration, the FC maintained its original award (reported here). On questions (1) and (2), the FC held that Lilly had proven its losses and that
Appeal decision
In its appeal of the reconsideration decision, Apotex argued that the FC had failed to properly address the issues of causation and mitigation, had given inadequate weight to the evidence of Apotex's expert, had erred in the reasoning that supported the award, and had failed to consider the impact of income tax on the award.
Causation: Apotex argued that Lilly could not prove that Apotex's conduct caused the claimed loss because during the relevant period, Lilly had excess cash deposited at a bank earning a lower rate of compound interest. The
Mitigation: Apotex argued that the FC ought to have considered whether Lilly had mitigated its damages. The Court declined to address the issue, which had neither been raised at the redetermination hearing nor in the Notice of Appeal.
Weighing of expert evidence: Apotex argued that the FC had given inadequate weight to the evidence of its expert. The
Reasoning supporting the award: Apotex identified several alleged gaps in the FC's reasoning. For example, Apotex argued that there was "no logical connection between the lost profits entering Lilly's "pool of resources" and being "spread among" all of Lilly's uses of money". Broadly, the
Impact of income tax: Finally, Apotex argued that annual tax rates can be estimated from the financial statements on the record and that the
Should you have any questions, please do not hesitate to contact a member of the Pharmaceutical Litigation Group.
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 directly.
Ms
ON M5H 3S5
CANADA
Tel: 4165935514
Fax: 4165911690
E-mail: JDumaran@smartbiggar.ca
URL: www.smartbiggar.ca
© Mondaq Ltd, 2021 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source