Date: 19980924
Docket: A-481-98
A-482-98
CORAM: THE CHIEF JUSTICE
McDONALD J.A.
SEXTON J.A.
BETWEEN:
APOTEX INC.
Appellant
(Respondent)
- and -
BAYER AG. AND BAYER INC.
Respondents
(Applicants)
- and -
THE MINISTER OF NATIONAL HEALTH & WELFARE
Respondent
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Thursday, September 24, 1998)
THE CHIEF JUSTICE
[1] This is an appeal from an order made by a Motions Judge in the Trial Division on 21 August 1998, in which he refused to strike out an affidavit filed by the respondent in prohibition proceedings commenced on 8 January 1996, pursuant to section 55.2 of the Patent Act and section 6 of the Patented Medicines (Notice of Compliance) Regulations.
[2] The appeal was heard together with an appeal in Court File A-482-98, which involves the same parties and raises identical issues. A copy of these reasons will be filed in Court File A-482-98 and shall be considered to be dispositive of the appeal in that file.
[3] We do not find it necessary to call upon counsel for the respondent Bayer for argument, since the interlocutory order from which the appeal is taken is discretionary and we are all of the view that the appellant has not satisfied us that in refusing to strike the affidavit, the Motions Judge proceeded on a wrong principle of law or has seriously misapprehended the facts or that injustice would otherwise result, if the order in appeal were allowed to stand.
[4] We are also of the view that the observations made by this Court, differently constituted, in its reasons in Janssen Pharmaceutica et. al. v. Apotex Inc. et. al. (Court Files A-61-98 and A-62-98) on 8 September 1998 are apposite and bear repeating here:
| The Court wishes to observe that considerable time, effort and resources have been devoted to the hearing of these interlocutory matters in both divisions of the Court. The motions were taken in the course of proceedings initiated under the NOC Regulations. Such proceedings are meant to be summary in nature and they generally raise complex and technical questions of fact. ... Where counsel seek an immediate resolution, they should be mindful that the motions judge has the discretion to defer their motion to the hearing whenever he or she is of the view that the motion could be more efficiently dealt with at that stage. |
[5] We will, therefore, dismiss the appeal with one set of costs for both these appeals and the motions before McDonald J.A. on 18 September 1998 for an order expediting the hearing of this appeal.
"Julius A. Isaac"
C.J.