Date: 19990113
Docket: A-286-98 and A-287-98
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
HOFFMANN-LA ROCHE LIMITED and
SYNTEX PHARMACEUTICALS
INTERNATIONAL LIMITED
Appellants
(Applicants)
- and -
THE MINISTER OF NATIONAL
HEALTH AND WELFARE and
NOVOPHARM LIMITED
Respondents
(Respondents)
Heard at Toronto, Ontario, Wednesday, January 13, 1999
Judgment delivered from the Bench
at Toronto, Ontario on Wednesday, January 13, 1999
REASONS FOR JUDGMENT OF THE COURT BY: STRAYER J.A.
Date: 19990113
Dockets: A-286-98 and A-287-98
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
HOFFMANN-LA ROCHE LIMITED and
SYNTEX PHARMACEUTICALS
INTERNATIONAL LIMITED
Appellants
(Applicants)
- and -
THE MINISTER OF NATIONAL
HEALTH AND WELFARE and
NOVOPHARM LIMITED
Respondents
(Respondents)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Wednesday, January 13, 1999)
STRAYER J.A.:
[1] These appeals were heard together. The background facts may be found in the reasons issued on this date by the Court in appeals A-92-98 and A-93-98.
[2] The appellants' applications for prohibition were dismissed by Jerome A.C.J. on January 27, 1998. A reconsideration of his order was refused by him on March 11, 1998 with respect to his failure in his order to declare the continuation of the automatic stay in respect of the issue of Notices of Compliance ("NOCs"). The appellants then applied for prohibition or certiorari under section 18 and 18.1 of the Federal Court Act to prevent or quash any issue of NOCs with respect to the formulations of naproxen which were in issue before Jerome A.C.J. Those applications came before Hugessen J. who dismissed them1. He did so on the principle of res judicata: namely, that the request for a determination that the stay provided by section 7 of the Regulations continues until all appeals are dispatched of or all appeal periods have expired, had been refused by the Associate Chief Justice in a proceeding involving the same parties.
[3] The present appeals are from those decisions of Hugessen J. of April 21, 1998.
[4] We are advised that since the decision of Jerome A.C.J., and on or about February 6, 1998 an NOC was issued by the Minister of Health and Welfare for the formulation which was the subject of A-93-98, but none has yet been issued in respect of the formulation involved in A-92-98. The relief requested therefore is either certiorari in respect of any NOC already issued, or prohibition in respect of the issue of any future NOC until the application made by the appellants under the Regulations has been "finally dismissed".
[5] The relevant regulations were quoted at length in the reasons in the other appeals. Suffice it to repeat that by subsection 7(4) of the Regulations the stay against the Minister preventing an issue of an NOC, automatically provided by subsection 7(1) when an application for prohibition is launched, may cease to apply
| if the application is ... finally dismissed by the court. |
The appellants contend that on the basis of the words "finally dismissed" Hugessen J. should have prohibited the Minister from issuing NOC's until all appeals from the decisions of Jerome A.C.J. had been exhausted.
[6] Hugessen J. took the view that the Associate Chief Justice had already in effect refused such a remedy. As he was obliged to do, he regarded this as being a disposition of the issue and therefore refused to grant any relief. However, in the light of our reasons in appeals A-92-98 and A-93-98 it is now obvious that we do not consider that this issue was properly before Jerome A.C.J. and therefore his decisions are not res judicata on this point. We must therefore examine the issues which Hugessen J. properly felt obliged to treat as already determined.
[7] We have reached the conclusion that, in interpreting the words "finally dismissed by the court" in subsection 7(4), we must have regard to the whole phrase. The "court" referred to therein is defined by section 2 of the Regulations as:
| the Federal Court of Canada or any other superior court of competent jurisdiction... |
As long as the proceeding is brought in the Federal Court Trial Division, we are of the view that the phrase "dismissed by the court" means "dismissed by the Federal Court Trial Division". This seems most consistent with the definition of "court" which includes provincial superior courts of competent jurisdiction, presumably referring only to those which have original jurisdiction in prohibition. In most provinces these would be separate superior courts of first instance. Even if, arguably, the reference to "court" must be taken to include in our case both divisions of the Federal Court, this would mean that a matter commenced in the Trial Division is "finally dismissed" when an appeal has been disposed of in the Appeal Division or the time for appealing here has expired.
[8] In our view this conclusion is generally consistent with the summary nature of the proceedings under the Regulations and the fact that the issue of an NOC in no way finally determines the rights of the patentee. In this respect we believe that jurisprudence cited to us on the meaning of "final" is readily distinguishable.2
[9] For these reasons there can now be no basis for granting prohibition nor in treating an NOC as invalid because it is in conflict with the subsection 7(1) stays. Those stays either terminated with the orders of Jerome A.C.J. or at the latest with our orders of this date in A-92-98 and A-93-98.
[10] In these circumstances it is not necessary to express any opinion on the meaning, or application, of the amendment to subsection 7(4), which came into effect on March 12, 1998 and which terminates a stay where an application for prohibition is "dismissed by the court hearing the application".
Disposition
[11] These appeals will therefore be dismissed with costs.
"B.L. Strayer"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKETS: A-286-98 and A-287-98
| STYLE OF CAUSE: HOFFMANN-LA ROCHE LIMITED and |
SYNTEX PHARMACEUTICALS
INTERNATIONAL LIMITED
| Appellant |
(Applicants)
- and -
| THE MINISTER OF NATIONAL |
HEALTH AND WELFARE and
NOVOPHARM LIMITED
| Respondents |
(Respondents)
DATE OF HEARING: WEDNESDAY, JANUARY 13, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STRAYER J.A.
Delivered at Toronto, Ontario
on Wednesday, January 13, 1999
APPEARANCES: Mr. Sheldon Hamilton
Ms. Geneviève Prevost
| For the Appellants |
Mr. Donald Plumley, Q.C.
Mr. Mark Mitchell
For the Respondents
Mr. F.B. (Rick) Woyiwada
For the Respondent
Minister
| SOLICITORS OF RECORD: Smart & Biggar |
Barristers & Solicitors
438 University Avenue
Suite 1500
Toronto, Ontario
M5G 2K8
| For the Appellant |
Lang Mitchener
Barristers & Solicitors
BCE Place, P.O. Box 747, Suite 2500
181 Bay Street,
Toronto, Ontario
M5J 2T7
For the Respondent
Novopharm
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
Minister
| FEDERAL COURT OF APPEAL |
| Date: 19990113 |
| Dockets: A-286-98 and A-287-98 |
| BETWEEN: |
| HOFFMANN-LA ROCHE LIMITED and |
| SYNTEX PHARMACEUTICALS |
| INTERNATIONAL LIMITED |
| Appellants |
| (Applicants) |
| - and - |
| THE MINISTER OF NATIONAL |
| HEALTH AND WELFARE and |
| NOVOPHARM LIMITED |
| Respondents |
| (Respondents) |
| REASONS FOR JUDGMENT |
| OF THE COURT |
__________________
2 R. v. Morgentaler [1988] 1 S.C.R. 30; Leblanc v. Curbera [1983] 2 S.C.R. 28.