Date: 20000628
Docket: A-552-99
CORAM: LÉTOURNEAU, J.A.
EVANS, J.A.
SHARLOW, J.A.
BETWEEN:
APOTEX INC
Appellant
(Respondent)
- and -
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootscap
Respondents
(Applicants)
- and -
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondent
(Respondent)
Heard at Toronto, Ontario, on Wednesday, June 28, 2000
Order delivered from the Bench at Toronto, Ontario,
on Wednesday, June 28, 2000
REASONS FOR ORDER OF THE COURT: SHARLOW J.A.
Date: 20000628
Docket: A-552-99
CORAM: LÉTOURNEAU, J.A.
EVANS, J.A.
SHARLOW, J.A.
BETWEEN:
APOTEX INC
Appellant
(Respondent)
- and -
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootscap
Respondents
(Applicants)
- and -
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondent
(Respondent)
REASONS FOR ORDER OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Wednesday, June 28, 2000)
SHARLOW J.A.
| _. On August 22, 1994, an application was commenced for an order prohibiting the Minister of National Health and Welfare from issuing a Notice of Compliance to the Appellant in respect of the drug cisapride. That application was a response to a Notice of Allegation served by the Appellant on July 11, 1994. The application was heard on December 15 to 18, 1998 and January 14 and 15, 1999. |
| _. Paragraph 7(1)(e) of the Patented Medicines (Notice of Compliance) Regulations precludes the Minister of Health from issuing a Notice of Compliance for a specified period once the Minister receives proof that an application for a prohibition order has been commenced. In this case, the statutory injunction would have expired on January 12, 1999 but for an order granted by the Motions Judge on January 8, 1999 with the consent of the parties. That order extended the injunction to the date of the Motions Judge"s disposition of the application. |
| _. Following the completion of the hearing on January 15, 1999, the Motions Judge reserved his decision. By August 3, 1999, the decision was still under reserve and the Appellant applied for a variation that would have put an end to the statutory injunction unless the Respondents applied, within 14 days, for an order continuing the extension on the basis of the Appellant"s failure to reasonably cooperate in expediting the application. On August 25, 1999, the Motions Judge dismissed the motion for a variation. That order is the subject of this appeal which was commenced by the Appellant on September 7, 1999. The Motions Judge granted the prohibition order on February 9, 2000, thus disposing of the application on its merits. |
| _. In view of the informed, unlimited and unconditional consent of the Appellant to the extension of the injunction until disposition of the application, we are satisfied that the Motions Judge properly exercised his discretion when, on the motion of the Appellant seven months after the consent order, he refused to shorten the injunction period as extended by the consent order. |
| _. The appeal will be dismissed with costs. |
"Karen R. Sharlow"
J.A.
| _. FEDERAL COURT OF CANADA |
Names of Counsel and Solicitors of Record
| DOCKET: A-552-99 |
| STYLE OF CAUSE: APOTEX INC |
Appellant
(Respondent)
| - and - |
| JANSSEN PHARMACEUTICA INC. and JANSSEN PHARMACEUTICA naamloze vennootscap |
Respondents
(Applicants)
| - and - |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE |
Respondent
(Respondent)
DATE OF HEARING: WEDNESDAY, JUNE 28, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
| OF THE COURT BY: SHARLOW J.A. |
Delivered at Toronto, Ontario on Wednesday, June 28, 2000
APPEARANCES: Mr. H. B. Radomski
| For the Appellant (Respondent) |
Mr. Anthony G. Greber
| For the Respondents (Applicants) |
| No One Appeared |
| For the Respondent (Respondent) |
| SOLICITORS OF RECORD: Goodman Phillips & Vineberg |
Barristers & Solicitors
2400- 250 Yonge Street
Toronto, Ontario
M5B 2M6
| For the Appellant (Respondent) |
Solicitors of Record ...cont"d
| Gowling, Strathy & Henderson |
| Barristers & Solicitors |
| 2600- 160 Elgin Street |
| P.O. Box 466, Station "D" |
| Ottawa, Ontario |
| K1P 1C3 |
| For the Respondents (Applicants) |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent (Respondent) |
FEDERAL COURT OF APPEAL
Date: 20000628
Docket: A-552-99
BETWEEN:
| APOTEX INC |
Appellant
(Respondent)
| - and - |
| JANSSEN PHARMACEUTICA INC. and JANSSEN PHARMACEUTICA naamloze vennootscap |
Respondents
(Applicants)
| - and - |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE |
Respondent
(Respondent
| REASONS FOR ORDER |
| OF THE COURT |