The Canadian Association of University Teachers (CAUT) believes a new legal tactic adopted by Canadian pharmaceutical corporation Apotex Inc. against Canadian university teacher Dr. Nancy Olivieri is a blatant misuse of the Canadian legal system.

In a late December appeal to the Court of Appeal for Ontario, Apotex has requested to be relieved from complying with a settlement it entered into with Dr. Olivieri in 2004 to resolve defamation litigation.

Apotex has brought its new appeal even though the Court of Appeal ordered Apotex to comply with the settlement agreement 18 months ago.

“Apotex is acting as if the courts are a merry-go-round it can use to ensnare individuals in endless litigation, regardless of the orders made in those courts,” said James Turk, Executive Director of CAUT.  “No responsible corporate citizen would adopt such tactics against an individual Canadian university teacher, or any Canadian.”

In July of 2007, the Court of Appeal for Ontario confirmed that Apotex and Dr. Olivieri had entered into an enforceable settlement of defamation claims by both parties.  The Court of Appeal granted Dr. Olivieri’s request that the settlement be enforced, and ordered Apotex and Dr. Olivieri to comply with the settlement agreement.

Apotex opposed enforcement of the settlement by the Court of Appeal.  Apotex alleged that Dr. Olivieri had breached or repudiated the settlement agreement by “disparaging” Apotex.  Dr. Olivieri has denied the allegation.

The Court of Appeal found that Apotex had produced “very little evidence” in support of its allegation that Dr. Olivieri had breached the settlement agreement.  It held that Apotex could take future proceedings, if it wished, to pursue allegations that Dr. Olivieri had breached or repudiated the settlement agreement.

A year later, in July 2008, Apotex still had refused to take any steps to complete the settlement agreement.  Dr. Olivieri again sought enforcement of the terms of the settlement and of the 2007 order of the Court of Appeal.  Apotex alleged again that Dr. Olivieri had breached or repudiated the settlement agreement by “disparaging” Apotex. 

Dr. Olivieri brought a motion in the Ontario Superior Court of Justice in September 2008 seeking the court’s assistance in requiring Apotex to comply with the settlement, as ordered by the Court of Appeal.  In early November, Apotex set out its allegations of “disparagement” by Dr. Olivieri in a new Superior Court action.  Apotex sought to oppose Dr. Olivieri’s motion on the basis of its allegations in its Superior Court action. 

On November 28, 2008, Justice George Strathy of the Ontario Superior Court of Justice ordered Apotex to perform all the terms of the settlement agreement.  In his decision, Justice Strathy made public for the first time that the settlement agreement required Apotex to pay Dr. Olivieri $800,000.

Now, in its new appeal, commenced in late December, Apotex has requested the Court of Appeal to set aside Justice Strathy’s order and dismiss Dr. Olivieri’s motion that Apotex be required to comply with the 2004 settlement agreement.  Apotex has also made an alternative request of the Court of Appeal that Apotex’s compliance with the settlement agreement be delayed until its allegations of “disparagement” by Dr. Olivieri are the subject of a trial.

“Apotex appears to believe that it can simply disregard the original settlement agreement and  the previous order of the Court of Appeal if that will assist it in adversarial tactics against Dr. Olivieri,” said Mr. Turk.  “Canadian citizens can have little legal protection from major corporate interests if a corporation such as Apotex can so readily oppress an individual university teacher.”

Apotex’s formal notice of its new appeal is available here.

In a media release issued on December 1, 2008, CAUT expressed grave concern that Apotex’s Superior Court action alleging “disparagement” by Dr. Olivieri is an attempt to prevent Dr. Olivieri from participating in discussion of systemic issues of public interest, and a blatant attack on academic freedom.  CAUT’s December 1 media release is available here.