Glaxo Group Ltd. v. Novopharm Ltd., docket T-2673-96

     Date: 19990917

     Docket: T-2673-96

B E T W E E N :

     GLAXO GROUP LIMITED and

     GLAXO WELLCOME INC.

     Applicants

     - and -

     NOVOPHARM LIMITED and

     THE MINISTER OF NATIONAL HEALTH AND WELFARE

     Respondents

     REASONS FOR ORDER

     (Rendered from the Bench at Ottawa, Ontario

     Thursday, March 12, 1998)

HUGESSEN J.

     [1]      On February 9, 1998, a judge of this Court rendered a final judgment in a prohibition application made by the applicant and in which the Minister and Novopharm were the respondents. The operative part of that judgment reads as follows:

     [2]      Both Glaxo and the respondents, the Minister and Novopharm, have appealed from that order. The appeals of the Minister and of Novopharm seek to impugn only the second sentence, since obviously the first sentence is in their favour. The Minister and Novopharm now apply for a stay of those impugned words pending their appeal.

     [3]      I interpret the impugned part of the order as being, in effect, an order suspending the operation of the first sentence thereof, that is to say the dismissal of the prohibition, for the period of time stated.

     [4]      In applications for stay of a judgment pending appeal, in addition to the classic three part test which has now been laid down in many cases, a Court will also look at the effect of a stay, if granted, upon the appeal itself. One of the first questions that a Court must ask itself when asked to stay a judgment pending the appeal of that judgment is whether such a stay would have the effect of rendering the appeal itself nugatory or moot. That is clearly the situation here. If the judgment of February 9, 1998 is stayed as to the second sentence thereof, the first sentence will no longer be suspended and it will be open to Novopharm to seek and to the Minister to grant a notice of compliance with respect to the drug that is in question. If that were to happen, the appeal by the Minister and Novopharm of the second sentence of that order would have lost its object altogether. It would, indeed, in my view, have become moot, although it is not for me to say that it is moot and it is certainly not for me to say that the Court of Appeal can or cannot decide to hear the appeal. There is, however, nothing that I could do, if I did stay that sentence, that would oblige the Court of Appeal to hear the appeal from it. That consideration alone, in my view, is enough to dispose of the applications for stay that are before me.

     [5]      However, I have also considered the application of the three part test to this case.

     [6]      Much of the argument before me this morning was addressed, some of it rather thinly concealed, to the rightness or wrongness of the second sentence of the judgment of February 9, 1998. There is, of course, no question that the first part of the three part test requires a showing that there is a reasonable chance of success or an arguable case. That is a very low hurdle and one which is unquestionably met in this case as it is in very many other cases. Beyond that, I have simply no jurisdiction to go, and it is a waste of my time to attempt to persuade me that the judgment of February 9, 1998, insofar as it purports to suspend its own application for the period mentioned in paragraph 7(1)(e) of the Regulations, was wrong, inappropriate, ill-considered, improvident or should have been made in some other way. I accept, as I say, however, that the respondents who have appealed that part of the judgment have an arguable case on their appeal.

     [7]      I turn next to the issue of irreparable harm.

     [8]      Applications for stays have the burden of proving irreparable harm. They must bring before the Court evidence of real harm that will be suffered if no stay is granted. Speculation and supposition are not enough. In my view, there is simply no proper evidence in this case that irreparable harm will be suffered by either the Minister or Novopharm if the second sentence of the judgment is not stayed. For that reason as well, the applications for stay should be dismissed.

     [9]      The question of balance of convenience does not arise.

     [10]      I will enter an order accordingly.

     "James K. Hugessen"

     Judge