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Apotex Inc. v. Olivieri

An Attack on Academic Freedom

(December 1, 2008) The Canadian Association of University Teachers (CAUT) has expressed grave concern that a new lawsuit commenced by Apotex Inc. against Dr. Nancy Olivieri is a blatant attack upon academic freedom.

“Some of Apotex’s allegations in the lawsuit appear to be obviously absurd,” said James Turk, Executive Director of CAUT.  “More gravely, it appears that Apotex is simply bent upon preventing Dr. Olivieri from participating in discussion about systemic issues of public interest.”

The Apotex lawsuit arises from efforts by Dr. Olivieri to enforce an agreement she entered into with Apotex in November of 2004 in settlement of defamation claims by both parties. 

On Friday, November 28, 2008, after a lengthy course of litigation, Justice George Strathy of the Ontario Superior Court of Justice ordered that Apotex must perform all the terms of the settlement agreement.  Those terms include the payment to Dr. Olivieri by Apotex of $800,000, a figure first made public by Justice Strathy in his order.

The settlement agreement contained a term that Dr. Olivieri would not subsequently “disparage” Apotex or the drug deferiprone.  Apotex has opposed all of Dr. Olivieri’s efforts to enforce the settlement agreement on the basis of allegations that Dr. Olivieri has “disparaged” Apotex.  Dr. Olivieri has denied that she has done so. 

Most recently, Apotex has made its claims of “disparagement” against Dr. Olivieri in a Superior Court action commenced on November 4, 2008.  Justice Strathy’s order does not affect the new Apotex action.  In its action Apotex could claim from Dr. Olivieri the full amount of $800,000 required to be paid to her under the settlement agreement.

In its statement of claim Apotex takes a very broad view of what constitutes actionable “disparagement” by Dr. Olivieri.  Apotex claims that actionable “disparagement” includes situations in which Dr. Olivieri is said to have “acquiesced or consented” to alleged “disparagement” by others.  Instances of “disparagement” alleged by Apotex include:

  • A Wikipedia internet description of Dr. Olivieri, written by a person other than Dr. Olivieri;
  • An opinion column referring to Dr. Olivieri in The Globe and Mail written by a Globe columnist, not Dr. Olivieri, which does not contain any statement about Apotex attributed to Dr. Olivieri;
  • A motion picture company’s description of a potential movie about Dr. Olivieri;
  • A complaint to a newspaper by Dr. Olivieri that statements made in an article referring to her were incorrect. In its claim Apotex also makes many allegations of “disparagement” that appear to be based solely on Dr. Olivieri’s participation or attendance at conferences on the relationship between universities and the pharmaceutical industry at large, academic freedom, scientific research and conflict of interest.

The specific “disparagement” relied on by Apotex is in many cases unspecified.  In many instances Apotex again cites as “disparagement” statements made by persons other than Dr. Olivieri.

“It is extremely troubling that Apotex, which describes itself as a major research company, should appear to have such small regard for the academic freedom that is at research’s very core,” said Mr. Turk.  “In my view, university teachers and the public at large should not hesitate to support Dr. Olivieri in opposing such a disturbing lawsuit.”

The specific allegations made by Apotex in Apotex Inc. v. Olivieri are set out in the attached Appendix.
The Canadian Association of University Teachers is the national voice of 65,000 academic staff at more than 120 universities and colleges across Canada.