Harris v. Glaxosmithkline Inc.

Harris v. Glaxosmithkline Inc.

The appeal is dismissed because the amended statement of claim discloses no viable cause of action: the plaintiff was not a party to the NOC Proceedings and thus cannot maintain abuse of process; the pleaded predominant purpose for GSK’s conduct is a legitimate commercial/patentee interest and cannot found conspiracy to injure or unlawful-means conspiracy; waiver of tort requires predicate wrongdoing which is not pleaded; therefore dismissal under Rule 21 as plain and obvious was correct.

Citation
2010 ONCA 872
Parties
Plaintiff (appellant): Tracey Margaret Harris; Defendant (respondent): Glaxosmithkline Inc.; Glaxosmithkline PLC; Beecham Group PLC; Smithkline Beecham PLC; Smithkline Beecham Corporation
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
20 December 2010
Procedural Posture
Class Action (civil) / Appeal From Order Striking Statement of Claim (rule 21 Motion)
Outcome
Appeal dismissed; order of Perell J. striking the amended statement of claim and dismissing the action affirmed.
Legal Topics
Abuse of Process, Conspiracy (to Injure and by Unlawful Means), Waiver of Tort, NOC Proceedings (pm(noc) Regulations), Rule 21 Plain and Obvious Test, Sham Litigation
Source Language
English
Tort Law Class Actions Patent Law Administrative/regulatory Law Competition Law Civil Procedure Abuse of Process Conspiracy (to Injure and by Unlawful Means) +4 more

Case Brief

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Parties

Tracey Margaret Harris

Plaintiff (appellant)

Glaxosmithkline Inc.; Glaxosmithkline PLC; Beecham Group PLC; Smithkline Beecham PLC; Smithkline Beecham Corporation

Defendant (respondent)

Procedural Posture

Class Action (civil) / Appeal From Order Striking Statement of Claim (rule 21 Motion)

Legal Issues

  1. 1 Whether non-parties can maintain an abuse of process claim based on NOC proceedings
  2. 2 Whether the pleaded facts disclose a conspiracy to injure or a conspiracy using unlawful means
  3. 3 Whether waiver of tort requires predicate wrongdoing

Ratio Decidendi

The appeal is dismissed because the amended statement of claim discloses no viable cause of action: the plaintiff was not a party to the NOC Proceedings and thus cannot maintain abuse of process; the pleaded predominant purpose for GSK’s conduct is a legitimate commercial/patentee interest and cannot found conspiracy to injure or unlawful-means conspiracy; waiver of tort requires predicate wrongdoing which is not pleaded; therefore dismissal under Rule 21 as plain and obvious was correct.

Court Disposition

Appeal dismissed; order of Perell J. striking the amended statement of claim and dismissing the action affirmed.

Orders

  • Appeal dismissed
  • No order as to costs