Apotex Inc. v. Wellcome Foundation Ltd.
A-294-98 / A-295-98 / A-310-98
Marceau and Robertson JJ.A.
24/7/98
10 pp.
Appeals from denial of stay of execution of injunction-Permanent injunction enjoining appellants from manufacturing, distributing any pharmaceutical composition containing zidovudine, ordering delivery up for destruction of existing inventory of zidovudine capsules granted-Both appellants manufacturing, distributing zidovudine capsules for many years-Both building favourable reputation for products-Both negotiating long-term contracts for products with several Canadian hospitals, developing significant export sales-Appeals allowed-Per Marceau J.A. (Linden J.A. concurring): if appeal successful appellants suffering important loss of profits-As respondents not providing undertaking as to damages, no way for appellants to recover losses-Financial harm alone not sufficient basis for stay of injunction-Non-compensable losses appellants will sustain by having been forced to leave market temporarily will exceed value of inventories, deprivation of sales profits for limited time-Loss of market share because of nature of market having serious repercussions extending long after favourable appeal judgments-Severe, irreparable harm to appellants-Since appeals raising serious questions, stay of execution refused only if postponement of injunctive orders causing respondents equally irreparable harm in eventuality of unfounded appeal and balance of convenience not favouring stay-Motions Judge not making finding of irreparable harm to respondents-Only damage to respondents loss of sales to appellants, compensable by payment equal to sales revenue-Per Robertson J.A.: line of cases beginning with Laboratoire Pentagone Limitée v. Parke, Davis & Company [1968] S.C.R. 269, and on which Motions Judge based decision not to grant stays largely overturned by Supreme Court of Canada's decisions in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 and Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110-Appellants will suffer irreparable harm if stay not granted-Harm likely to persist long after successful appeal-Harm irreparable because no one against whom losses may be recovered-Respondents would not suffer irreparable harm if appellants allowed to market respective products-Balance of convenience favouring appellants having regard to respondents' refusal to give undertaking to pay damages for losses caused by continued imposition of injunction through to successful appeal-Argument would expose them to unlimited liability not persuasive, if only because such undertaking required if successful in obtaining interlocutory injunction at outset-That not required by law not persuasive-Interests of justice demanding maintenance of "status quo" pending disposition of appeals.