AstraZeneca Canada et al v. Apotex Inc. (LOSEC)
2017 FC 726"On [the issue of Apotex's corporate tax rate], I agree with Ms. Frederick. Apotex could have avoided any uncertainty by producing its tax returns and it declined to do so. This is not the first time Apotex has faced this problem. In Wellcome Foundation Ltd v Apotex Inc … the Court observed at para 30 that Apotex “did not tender its income tax returns as evidence of tax paid”. Apotex’s financial statements were described as ‘merely projections’ and inadequate substitutes. The Court went on to observe that, despite being aware of its potential liability, Apotex “had not maintained financial records in a way that made it clear what expenses could be attributed for its various product lines” (para 31). The same point applies to some of Apotex’s records produced in this case."
- Judgment in 2017 FC 726
Patent infringement and Section 8 matters involving the pharmaceutical drug LOSEC (active pharmaceutical ingredient – omeprazole) heard in the Federal Court of Canada.
CHS’ work involved quantifying AstraZenca’s lost profits and Apotex’s profits from infringement, as well as Apotex’s lost profits under Section 8 of the PM(NOC) Regulations, including:
- Identifying, collecting and analyzing the relevant accounting documents of AstraZeneca.
- Reviewing and analyzing Apotex’s accounting productions and assisting Counsel in developing questions and further information requests for the Examination for Discovery of Apotex.
- Preparing expert reports and reply reports detailing our estimates of AstraZeneca’s lost profits and Apotex’s profits from infringement, as well as Apotex’s lost profits under Section 8 of the PM(NOC) Regulations, and commenting on the opposing expert’s reports.
- Providing expert testimony in the Federal Court of Canada and assisting Counsel by providing suggested questions for the cross-examination of the opposing accounting expert.
This case involved many complex financial issues related specifically to the pharmaceutical industry, including sales rebates and transfer pricing, among others. The parties resolved most of the quantification issues prior to trial, with the only accounting issue remaining being the appropriate method and rate of return to use in quantifying Apotex’s profits on profits.