NOËL J.A.
BETWEEN:
BRISTOL-MYERS SQUIBB CANADA INC.
Appellant
(Applicant)
and
ATTORNEY GENERAL OF CANADA,
THE MINISTER OF HEALTH and APOTEX INC.
Respondents
(Respondents)
Heard at Ottawa, Ontario, on January 23, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on January 23, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
Date: 20020123
CORAM: RICHARD C.J.
BETWEEN:
BRISTOL-MYERS SQUIBB CANADA INC.
Appellant
(Applicant)
and
ATTORNEY GENERAL OF CANADA,
THE MINISTER OF HEALTH and APOTEX INC.
Respondents
(Respondents)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on January 23, 2002.)
[1] The sole issue raised in this appeal is whether the Trial Division, reported at [2001] F.C.J. no. 51, erred in refusing to set aside the Minister's decision that the patent at issue was ineligible for inclusion on the Register maintained under section 3 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (March 12, 1993), as amended by SOR/98-166 (March 12, 1998) and by SOR/99-379 (October 1, 1999), (the Regulations).
[2] In our view, the application Judge did not err in upholding the Minister's decision.
[3] The appellant relied on the decision of Madam Justice McGillis in Apotex Inc. v. Canada (Minister of Health), (1999), 87 C.P.R. (3d) 271 (F.C.T.D.), as affirmed by the Court of Appeal, (2001), 11 C.P.R. (4th) 538 (F.C.A.).
[4] In our view, that decision is distinguishable because it was decided prior to the introduction of subsection 4(6) of the Regulations and involved a supplement to a new drug submission based on a new indication or use.
[5] In affirming the decision of McGillis J., the Court of Appeal expressly declined to deal with the issue of whether the filing of a second patent list with regard to the same drug was appropriate.
[6] Accordingly, the appeal will be dismissed with costs to both respondents.
"J. Richard"
Chief Justice
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-44-01
STYLE OF CAUSE:
BRISTOL-MYERS SQUIBB CANADA INC.
and
ATTORNEY GENERAL OF CANADA,
THE MINISTER OF HEALTH and APOTEX INC.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 23, 2002
REASONS FOR JUDGMENT : RICHARD C.J.
DATED: JANUARY 23, 2002
APPEARANCES:
Mr. Anthony Creber FOR THE APPELLANT
Mr. Martin Mason
Mr. Frederick Woyiwada FOR THE RESPONDENT
(ATTORNEY GENERAL OF CANADA, THE MINISTER OF HEALTH)
Mr. Harry Radomski FOR THE RESPONDENT
Mr. Andrew Brodkin (APOTEX INC.)
SOLICITORS OF RECORD:
Gowlings FOR THE APPELLANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada (ATTORNEY GENERAL OF
Ottawa, Ontario CANADA, THE MINISTER OF HEALTH)
Goodmans FOR THE RESPONDENT
Toronto, Ontario (APOTEX INC.)