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Government of Ontario Ban on Private Label Generics Is Upheld By Court Of Appeal by Bonnie Freedman
Borden Ladner Gervais LLP - Toronto Office
Jeffrey S. Graham
Borden Ladner Gervais LLP - Toronto Office
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January 18, 2012
Previously published on January 2012
The complex market and regulatory framework for the sale of drugs in Ontario has been clarified, to some extent, by the recent decision of the Ontario Court of Appeal (Court) in an appeal by the Government of Ontario (Ontario) from two orders of the Ontario Divisional Court on applications brought by Shoppers Drug Mart and its affiliates (“Shoppers”) and the Katz Group and its affiliates Pharma Plus and Rexall (“Katz”). The Court reversed the decision of the Divisional Court that had declared ultra-vires two sections of provincial regulations which effectively prohibit pharmacies from selling their “private-label” generic drugs (the “Regulations”) in Ontario. A key factor in the decision was the Court’s view that in a major public policy domain involving the intersection of health care and public finance, courts must exhibit “genuine restraint” in reviewing statutes and regulations and that the Divisional Court had not shown such restraint in this case.
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