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17 April 2019
In December 2017 Apotex was awarded more than C$11 million in damages and pre-judgment interest for losses resulting from delays in the US Food and Drug Administration's (FDA's) approval of its amoxicillin-clavulanic acid and levodopa-carbidopa products. The delays had been caused by contractual breaches and negligence on the part of MDS Pharma Services (MDS), a contract research organisation hired to carry out bioequivalence studies for those products (for further details please see "Apotex granted damages for delayed FDA approval of two products").
On 16 January 2019 the Ontario Court of Appeal dismissed MDS's appeal and Apotex's cross-appeal of that judgment (Apotex Inc v Nordion (Canada) Inc, 2019 ONCA 23).
The court rejected MDS' argument that the trial judge had erred in finding that Apotex's claim was not time barred. Rather, the court found that the limitation period had not begun to run until six months after the date on which the trial judge concluded that it began. The court found no palpable and overriding error in the trial judge's interpretation of the contract or his finding that Apotex had adequately mitigated its damages. With respect to Apotex's cross-appeal, the court found no palpable and overriding error in the trial judge's assessment of damages and rejected Apotex's argument that damages ought to have been fixed at C$12.6 million.
For further information on this topic please contact Abigail Smith at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email (email@example.com). The Smart & Biggar website can be accessed at www.smart-biggar.ca.
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