Harris v. GlaxoSmithKline Inc. et al.,

• Jurisdiction: Ontario
• Judge: Rosenberg, Moldaver and Karakatsanis, JJ.A.
• Neutral Citation: 2010 ONCA 872
• Date: 17 November 2010
• Court: Court of Appeal (Ontario)

Harris v. GlaxoSmithKline Inc. (2010), 272 O.A.C. 214 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.041

Tracey Margaret Harris (plaintiff) (appellant) v. GlaxoSmithKline Inc., GlaxoSmithKline PLC, Beecham Group PLC, SmithKline Beecham PLC and SmithKline Beecham Corporation (defendants) (respondents)

(C52138; 2010 ONCA 872)

Indexed As: Harris v. GlaxoSmithKline Inc. et al.

Ontario Court of Appeal

Rosenberg, Moldaver and Karakatsanis, JJ.A.

December 20, 2010.

Summary:

The plaintiff used Paxil, a prescription drug used to treat anxiety, depression and other disorders. She was the representative plaintiff in a class action in which she contended that from 1999 to 2003, the defendants misused a process under the Patent Act to delay the entry into the Canadian market of a less expensive generic equivalent of Paxil. During that four-year period, Paxil users were required to buy Paxil at a "supra-competitive" price for which they now sought to hold the defendants accountable. Harris alleged three causes of action: (1) abuse of process; (2) conspiracy; and (3) waiver of tort. The defendants moved under Civil Procedure rules 21.01(1)(a) and (b) for an order striking out Harris' claim and dismissing the action.

The Ontario Superior Court of Justice, in a decision reported at [2010] O.T.C. Uned. 2326, allowed the motion and dismissed the action. Harris appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Restitution - Topic 128 , both Torts - Topic 5703 and Torts - Topic 6252 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff used Paxil, a prescription drug used to treat anxiety, depression and other disorders - She was the representative plaintiff in a class action in which she contended that from 1999 to 2003, the defendants misused a process under the Patent Act to delay the entry into the Canadian market of a less expensive generic equivalent of Paxil - During that four-year period, Paxil users were required to buy Paxil at a "supra-competitive" price for which they now sought to hold the defendants accountable - The plaintiff characterized the proceedings under the Patent Act as "frivolous", "meritless", "sham litigation", "spurious" and "objectively baseless" - A motion judge granted the defendants' motion under Civil Procedure rules 21.01(1)(a) and (b) for an order striking out the plaintiff's claim and dismissing the action - The motion judge considered the six notice of compliance proceedings that the defendants had commenced under the Patent Act and found that "it is plain and obvious that [the plaintiff's] allegations are patently ridiculous and incapable of proof" - The plaintiff appealed, asserting that the motion judge erred in analyzing the decisions on his own motion - The Ontario Court of Appeal dismissed the appeal - It was open to the motion judge to look at the decisions since they formed part of the record - Further, he was entitled, based on his review of those decisions, to conclude that the proceedings were not, on their face, sham proceedings - What he could not do was to use them to conclude that the plaintiff's allegations to the opposite effect "were patently ridiculous and incapable of proof." - That finding could only be made on a full record - That said, the motion judge's error was harmless - His findings in relation to the decisions were obiter - They formed no part of the analysis that led him to correctly conclude that the pleadings as framed disclosed no viable cause of action against the defendants in tort - See paragraphs 52 to 57.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Torts - Topic 6252 ].

Restitution - Topic 128

Unjust enrichment - Remedies - Waiver of tort - The plaintiff used Paxil, a prescription drug used to treat anxiety, depression and other disorders - She was the representative plaintiff in a class action in which she contended that from 1999 to 2003, the defendants misused a process under the Patent Act to delay the entry into the Canadian market of a less expensive generic equivalent of Paxil - During that four-year period, Paxil users were required to buy Paxil at a "supra-competitive" price for which they now sought to hold the defendants accountable - The plaintiff alleged, inter alia, waiver of tort - A motion judge granted the defendants' motion under Civil Procedure rules 21.01(1)(a) and (b) for an order striking out the plaintiff's claim and dismissing the action - The plaintiff appealed - The Ontario Court of Appeal dismissed the appeal - The motion judge dismissed the waiver of tort claim because, in his view, "it is plain and obvious that there is no predicate wrongdoing upon which to base a plea of waiver of tort" - The court agreed - See paragraphs 58 to 60.

Torts - Topic 5703

Conspiracy - General - Elements - The plaintiff used Paxil, a prescription drug used to treat anxiety, depression and other disorders - She was the representative plaintiff in a class action in which she contended that from 1999 to 2003, the defendants misused a process under the Patent Act to delay the entry into the Canadian market of a less expensive generic equivalent of Paxil - During that four-year period, Paxil users were required to buy Paxil at a "supra-competitive" price for which they now sought to hold the defendants accountable - The plaintiff alleged, inter alia, conspiracy - A motion judge granted the defendants' motion under Civil Procedure rules 21.01(1)(a) and (b) for an order striking out the plaintiff's claim and dismissing the action - The plaintiff appealed - The Ontario Court of Appeal dismissed the appeal - To make out a conspiracy to injure, the defendants' predominant purpose had to be to inflict harm on the plaintiff - It was not enough if harm was the collateral result of acts pursued predominantly out of self-interest - The focus was on the actual intent of the defendants and not on the consequences that the defendants either realized or should have realized would follow - Stripped to their essentials, it would seem that the plaintiff's allegations contained the discernable predominant purpose that the defendants engaged in a course of conduct designed to obtain the highest possible price from consumers with a view to maximizing its revenue from the sale of Paxil - This was a classic commercial purpose that could not amount to conspiracy to injure even though, as a result, there was an economic impact on consumers - See paragraphs 39 to 48.

Torts - Topic 5703

Conspiracy - General - Elements - The plaintiff used Paxil, a prescription drug used to treat anxiety, depression and other disorders - She was the representative plaintiff in a class action in which she contended that from 1999 to 2003, the defendants misused a process under the Patent Act to delay the entry into the Canadian market of a less expensive generic equivalent of Paxil - During that four-year period, Paxil users were required to buy Paxil at a "supra-competitive" price for which they now sought to hold the defendants accountable - The plaintiff alleged, inter alia, conspiracy - A motion judge granted the defendants' motion under Civil Procedure rules 21.01(1)(a) and (b) for an order striking out the plaintiff's claim and dismissing the action - The plaintiff appealed - The Ontario Court of Appeal dismissed the appeal - The court agreed with the motion judge that the defendants' proceedings under the Patent Act were not contrary to law or to statute - They were proceedings that the defendants were entitled to bring - The proceedings were a response to notices of compliance initiated by generic manufacturers - The defendants had a statutory right to show that the generic manufacturer's allegations were not justified - It followed that the pleadings did not substantiate a conspiracy based on unlawful means - See paragraphs 49 to 51.

Torts - Topic 6252

Abuse of legal procedure - Abuse of process - Elements - The plaintiff used Paxil, a prescription drug used to treat anxiety, depression and other disorders - She was the representative plaintiff in a class action in which she contended that from 1999 to 2003, the defendants misused a process under the Patent Act to delay the entry into the Canadian market of a less expensive generic equivalent of Paxil - During that four-year period, Paxil users were required to buy Paxil at a "supra-competitive" price for which they now sought to hold the defendants accountable - The plaintiff alleged, inter alia, abuse of process - A motion judge granted the defendants' motion under Civil Procedure rules 21.01(1)(a) and (b) for an order striking out the plaintiff's claim and dismissing the action - The plaintiff appealed - The Ontario Court of Appeal dismissed the appeal - The motion judge correctly defined the constituent elements of the tort of abuse of process as follows: "(1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted" - The plaintiff's cause of action did not meet elements (1), (2) and (3) - The tort of abuse of process was not made out on the pleadings - See paragraphs 27 to 38.

Cases Noticed:

Apotex Inc. v. Merck & Co. et al. (2009), 391 N.R. 336; 2009 FCA 187, refd to. [para. 16].

AstraZeneca Canada Inc. v. Canada (Minister of Health) et al., [2006] 2 S.C.R. 560; 354 N.R. 88; 2006 SCC 49, refd to. [para. 16].

Director of Investigation and Research v. Warner Music of Canada Ltd. (1997), 78 C.P.R.(3d) 321 (Comp. Trib.), refd to. [para. 19].

Metrick v. Deeb et al. (2003), 172 O.A.C. 229 (C.A.), leave to appeal refused (2004), 329 N.R. 392; 195 O.A.C. 398 (S.C.C.), refd to. [para. 29].

Roman Corp. v. Hudson's Bay Oil and Gas Co., [1973] S.C.R. 820, refd to. [para. 40].

Crofter Hand Woven Harris Tweed Co. v. Veitch, [1942] A.C. 435 (H.L.), refd to. [para. 40].

Belsat Video Marketing Inc. v. Astral Communications Inc. et al. (1998), 54 O.T.C. 84; 81 C.P.R.(3d) 1 (Gen. Div.), refd to. [para. 41].

Positive Seal Dampers Inc. v. M.I. Heat Transfer Products Ltd. (1991), 2 O.R.(3d) 225 (Gen. Div.), refd to. [para. 41].

Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada et al. (2003), 172 O.A.C. 202; 65 O.R.(3d) 30 (C.A.), refd to. [para. 49].

Aronowicz et al. v. Emtwo Properties Inc. et al. (2010), 258 O.A.C. 222; 2010 ONCA 96, refd to. [para. 59].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 668 [para. 30].

Counsel:

William V. Sasso, Jacqueline A. Horvat and Professor Ed Morgan, for the appellant;

David W. Kent, W. Brad Hanna and Geoff Moysa, for the respondents.

This appeal was heard on November 17, 2010, by Rosenberg, Moldaver and Karakatsanis, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Moldaver, J.A., on December 20, 2010.