Pfizer Canada Inc. v. Nu-Pharm Inc., docket T-1352-93

Date: 19980422

Docket: T-1352-93

BETWEEN:

PFIZER CANADA INC. and

PFIZER CORPORATION

     Applicants

- and -

NU-PHARM INC. and

THE MINISTER OF NATIONAL HEALTH AND WELFARE

Respondents

     REASONS FOR ORDER AND ORDER

GILES, A.S.P.:

     It is my finding that the order of Mr. Justice Richard releasing documents from the confidentiality order of Mr. Justice Rouleau did not apply to those documents which were the subject of the order of Mr. Justice McKeown to produce the sealed Nu-Pharm NDS for the use of the motions Judge on the motion to determine its compellability (I know that certain portions of the NDS were otherwise made available).

     It is my view that the Nu-Pharm NDS should not have been opened by the Registry and should have remained sealed. However the Nu-Pharm NDS was made public and it is now too late to seal it up again. Those copies remaining in the Registry are to be returned to the Minister.

     However, even though the contents of the 1993 NDS are now known to counsel, that is not to say that counsel is free to use those parts which were not public prior to the release by the Registry. Whether or not those documents may be used at the hearing would probably be a matter for the Judge disposing of the originating motion should they come before him.

     I note that the NDS or selected parts of it have been made part of the applicant's record. Those inclusions are not justified as they have not been exhibited to an affidavit filed as required by Rule 1603.

     ORDER

     It is ordered that the Registry remove Nu-Pharm's New Drug Submission for fulconazole placed in the Registry pursuant to the order of Mr. Justice McKeown dated August 10, 1993 from the Registry and return all copies of the same to the respondent Minister of National Health and Welfare.

     Costs in the cause.

                         "Peter A.K. Giles"             

                                 A.S.P.

                

Toronto, Ontario

April 22, 1998

     FEDERAL COURT OF CANADA

Date: 19980422

Docket: T-1352-93

BETWEEN:

PFIZER CANADA INC. and

PFIZER CORPORATION

     Applicants

- and -

NU-PHARM INC. and THE MINISTER OF NATIONAL HEALTH AND WELFARE

Respondents

REASONS FOR ORDER AND ORDER

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

DOCKET:                      T-1352-93

STYLE OF CAUSE:                  PFIZER CANADA INC. and

PFIZER CORPORATION

                         -and-

NU-PHARM INC. and THE MINISTER OF

NATIONAL HEALTH AND WELFARE

DATE OF HEARING:              APRIL 20, 1998

PLACE OF HEARING:              TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                  GILES, A.S.P.

DATED:                      APRIL 22, 1998

APPEARANCES:                  Mr. Anthony Creber

                             For the Applicants

                         Mr. Richard Naiberg

                             For the Respondent

(Nu-Pharm Inc.)

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SOLICITORS OF RECORD:          Mr. Anthony Creber

                         GOWLINGS

                         160 Elgin Street

                         Suite 2600

                         Ottawa, Ontario

                         K1P 1C3

                        

                             For the Applicants

    

                         Mr. H.B. Radomski

                         Mr. Richard Naiberg

                         GOODMAN PHILLIPS & VINEBERG

                         250 Yonge Street

                         Suite 2400

                         Toronto, Ontario

                         M5B 2M6

                             For the Respondent

                             (Nu-Pharm Inc.)

                         Mr. George Thomson

                         Deputy Attorney General

                         of Canada

                             For the Respondent

                             (The Minister of National

                             Health and Welfare)