Dear Colleagues:

 

Those of you interested in abuse of process, conspiracy or waiver of tort, might be interested in the decision of the Ontario Court of Appeal in Harris v. Glaxosmithkline Inc., 2010 ONCA 872 (http://www.ontariocourts.on.ca/decisions/2010/december/2010ONCA0872.htm).

The allegation of the class plaintiff was that GSK had opportunistically launched baseless NOC proceedings against generic drug manufacturers to take advantage of the mandatory stay provisions of the federal legislation. These provisions in effect extended the life of GSK’s patents on one of its drugs (Paxil) by four years and allowed it (so the plaintiff claimed) to charge consumers “supra-competitive” prices that we significantly higher than those that would have been charged by generic drug manufacturers.

 

The Court found that the tort of abuse of process was not made out since the plaintiff was not a party to the legal process initiated by GSK (the generic drug manufacturers were) and this was a requirement of the tort (despite claims made by Fleming to the contrary).  The court found that conspiracy to injure was not made out since GSK had not acted with the predominant purpose of injuring consumers but rather with the motive of commercial profit.  Finally, the court found that there could be no waiver of tort claim since “waiver of tort requires some form of [predicate] wrongdoing” (at [58]).

 

I, for one, have doubts as to the requirement of mutuality insisted upon by the Court in relation to abuse of process but would, as always, be interested in the views of others.

 

Cheers,

-- 
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435