The Federal Court of Appeal decision with
respect to the appeal of Justice de
Montigny affirmation of an order of Prothonotary Aronovitch dated August 20,
2013 which had struck those portions of the appellant’s Statement of Claim
seeking punitive and exemplary damages pursuant to an action under Section 8 of
the Patented Medicines
(Notice of Compliance) Regulations was released today. The FCA, adopting the reasons expressed by Justice de Montigny at paragraphs 28 to 37 of his order, agreed with him that a claim for punitive and exemplary damages cannot be sustained under Subsection 8 the PM(NOC) Regulations.
The FCA further noted that “punitive damages are not limited to certain categories of claims… [and] that punitive damages have been found to be available in all types of cases, notably in patent infringement case” (See paragraph 8 of the decision). However, “punitive and exemplary damages cannot be available where the statutory regime underlying the claim explicitly or implicitly precludes them. This is the case under the NOC Regulations, which set out a comprehensive scheme with respect to compensation resulting from the operation of the statutory stay it provides for.” (See paragraph 9 of the decision).
In particular, the FCA noted in paragraph 10 that the FCA has previously held that Subsection 8 “allows compensation for losses actually incurred by a second person by reason of the operation of the statutory stay contemplated by the NOC Regulations, but it does not allow for other types of relief, such as disgorgement of profits or punitive damages”.
At appeal, the appellant raised paragraph 8(5) of the Regulations as a new justification for seeking punitive damages. As noted in the FCA decision at paragraph 11, “[t]hat paragraph provides that in “assessing the amount of compensation the court shall take into account all matters that it considers relevant to the assessment of the amount, including any conduct of the first or second person which contributed to the disposition of the application under subsection 6(1)” (emphasis added).” The FCA noted that “paragraph 8(5) cannot sustain a claim for punitive damages since, by their very nature, punitive damages are not “compensation”.”
A copy of the decision can be found at http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/71815/index.do