Lunbeck v. Minister of health, 2003 FC 1030

Date: 20030904

Docket: T-2112-02

Citation: 2003 FC 1030

Ottawa (Ontario), September 4, 2003

Present:    The Honourable Mr. Justice Blais           

BETWEEN:

                             H. LUNDBECK A/S

                                  -and-

                          LUNDBECK CANADA INC.

                                                               Applicants

                                   and

                         THE MINISTER OF HEALTH

                                  -and -

                          PHARMASCIENCE INC.

                                                              Respondents

                         REASONS FOR ORDER AND ORDER

[1]                 This is a motion for an order that the within application and the application in Court file No. T-122-02 be set down for hearing at the same time, on the same date, and before the same hearing Judge, to be dealt with at the discretion of the hearing Judge and alternatively, an order that the within application be set down for hearing on October 21 and 22, 2003 during the hearing scheduled for Court file No. T-135-02.

[2]                 The application in Court file No. T-122-02 between H. Lundbeck A\S et al v. Minister of Health et al and the application in Court file T-1652-02 between Genpharm Inc. v. Minister of Health et al are already set down for hearing at the same time, on the same date and before the same hearing Judge on September 16, and 17, 2003.

[3]                 The application in Court file No. T-135-02 between H. Lundbeck A\S et al v. The Minister of Health and Apotex Inc. is already set down for hearing on October 21 and 22, 2003.

[4]                 Pharmascience Inc., the applicant in this motion, suggested that the notices of application in the within proceeding and in Court files Nos. T-122-02 and T-135-02 contain common legal and factual issues. The applicant Pharmascience Inc. also indicated that since the legal issues in all three applications are the same and since factual issues in all three applications differ slightly, it would require no more than forty-five minutes to make oral representations pertaining to the particularities of its case.

[5]                 The applicant Pharmascience Inc. argued that both parties are ready for the hearing and that the parties in Court files Nos. T-122-02 and T-135-02 do not need more time to get prepared for the hearing in two weeks from now.

[6]                 The applicant Pharmascience Inc. referred to the criteria for the application of rule 105 summarized by this Court in Canning (John E.) Ltd. v. Tripap Inc. (1999), 167 F.T.R. 93 at paragraphs 26 and 27:

Consolidation of two actions will usually be ordered when the issues raised by the pleadings in the action are sufficiently familiar or common so as to achieve the objectives of consolidation namely: the general interest of justice, its proper administration and the true interests of the parties.

The underlying policy objectives in consolidation is the avoidance of a multiplicity of proceedings and the promotion of expeditious and inexpensive determination of those proceedings. Common parties, common legal and factual issues, similar causes of action, parallel evidence and the outcome of one case as likely resolving the other case or the factors to which the Court looks to in determining whether consolidation will be ordered or not.

[7]                 The applicant Pharmascience Inc. suggested that the allegations of non-infringement made by Pharmascience, Apotex and Genpharm in the three proceedings are substantively similar.

[8]                 In response to the arguments of the applicant Pharmascience Inc., the respondent Lundbeck mentioned that the two days set aside for the hearing are needed and will be used by the parties to make their arguments.

[9]                 If the parties in cases T-122-02 and T-1652-02 already need two days to present their case to the Court on September 16 and 17, 2003 and this case is heard at the same time, the consolidation of all these hearings would require three days. Moreover, both Cobalt Pharmaceutical Inc. in file No. T-2050-02 and Apotex in file No. T-135-02 have requested to be added to the other parties, for the same reasons. The request by Apotex was denied by this Court, because there is not sufficient time at the hearing to add another party to the proceedings.

[10]            Counsel for Lundbeck suggested that Lundbeck's and Genpharm's time allotment would be reduced if the ultimate decision was to hear Apotex in file No.

T-135-02 at the same time. Counsel argued it would be impossible to consolidate even one more or two more cases to be heard in the same period of time.

[11]            Counsel for Lundbeck also mentioned that there are already four law firms involved in the T-122-02 and T-1652-02 cases and if you consolidate one or two more other cases it means at least two more law firms involved, and more time for oral submissions.

[12]            Counsel for Lundbeck suggested that there would simply not be enough time to hear all the matters. Since the hearing is scheduled for two days, this means that Lundbeck and Genpharm would have to reduce their time and share with other parties the time provided to them a year ago.

[13]            Counsel for Lundbeck also stated that the evidence filed in the Genpharm matter was under a protective order covering one affidavit and the memoranda of fact and law of the parties.

[14]            In response to that argument, counsel for Pharmascience Inc. indicated that they would be ready to step out when confidential material was discussed by some parties and the Court.

[15]            Finally, counsel for Lundbeck also mentioned that there is no evidence of irreparable harm that would be suffered by Pharmascience Inc. if their case is not consolidated with files Nos. T-122-02 and T-1652-02.

[16]            Counsel for Genpharm supported the arguments made by Lundbeck and reminded the Court that they were denied a motion for an expedited hearing a year ago. Counsel for Genpharm stated that they were not prepared for a hearing with new parties given the two weeks left before the hearing and were not willing to share their time with other parties.

[17]            There are obviously common legal and factual issues in each case. Nevertheless, consolidation might have been the right thing to do six months or even a year ago. Consolidation should have been done before cross-examination of experts and would have allowed the parties and the Court, through hearing conferences to clearly identify, the common legal and factual issues in each proceeding.

[18]            In my view, it is now too late for that and it is obvious that the time that has been set aside for the hearing on September 16 and 17, 2003 cannot allow more than the applications in Court files Nos. T-122-02 and T-1652-02 to proceed.

[19]            The order issued by Prothonotary Morneau on August 19, 2003 suggested that it would be reasonable to hear the application in Court file No. T-135-02 on September 16 and 17, 2003 at the same time as the applications in Court files Nos.

T-122-02 and T-1652-02.

[20]            Nevertheless, the Prothonotary was conscious of time constraints and maintained the hearing dates for the application in Court file No. T-135-02, October 21 and 22, 2003.

[21]            This issue is dealt with in a separate order.

[22]            I would not go so far as to agree with Lundbeck that the motion by Pharmascience Inc. could be seen as a disguised attempt to obtain an expedited hearing, but the applicant Pharmascience Inc. has failed to demonstrate that it would suffer irreparable harm if its request is denied.

[23]            The applicant Lundbeck referred to many cases to support its position. In Shao v. Canada (Minister of Citizenship and Immigration), unreported, February 3, 1999, No. IMM-4178-98 (F.C.T.D.), Prothonotary Morneau stated:

[2] The granting of an expedited hearing is dealt with by the Federal Court of Appeal in Apotex v. Wellcome Foundation Ltd. (1998), 28 N.R. 349. Where "...there is a serious issue focussing on irreparable harm" (page 357) and the other side will not be prejudiced, the Court will usually make a judge available, provided a time table convenient to counsel and to the Court can be agreed upon.

[3] While I am not convinced that the irreparable harm test is the only test by which an expedited hearing may be ordered, the Applicant in the present instance shows, at best, a serious inconvenience.

[24]            In Mon-Oil Ltd. v. Canada, (1989) F.T.R. 50 (F.C.T.D.), Justice Cullen stated:

[4] Reed, J., in action No. T-266-88 writes:

"The applicant must also demonstrate that the respondent would suffer no appreciable prejudice or injustice if the stay is granted. As the applicable law points out it is not merely a balance of convenience test which is applied. The burden on the applicant is heavier than that."

In this application one could properly substitute "consolidation" for the word "stay".

[5] Certainly, for the defendant, it would be more convenient, and administratively easier to consolidate/join the actions or require that they be heard consecutively in a predetermined order. However, that is clearly not the test, and is a long way from meeting the heavy onus. Inconsistent findings of fact may well occur but vigilant counsel and a vigilant court can minimize that possibility, and in any event is not a sufficient ground to warrant consolidation.

[25]            In my view, the possibility that different judges render different decisions and discrepancies between those decisions has not been demonstrated in the circumstances. Counsel for Lundbeck also mentioned that two other cases with two other parties will probably be before this Court within months.

[26]            In my view, it would not be reasonable to add more to what is already scheduled at this stage. In my view, the harm that would be suffered by the parties involved in Court files Nos. T-122-02 and T-1652-02 would not be compensated by any benefits for the other side.

[27]            The Court is also informed that a motion for summary dismissal by Pharmascience Inc. is scheduled for October 29, 2003 and that a motion for an order that the merits in this Court proceeding be heard on October 29, 2003, presented to the Court on August 18, 2003, was adjourned sine die. One could expect that the applicant Pharmascience Inc. is entitled to proceed on its motion for summary dismissal on October 29, 2003, which was its first intention.

                                                O R D E R

Therefore, for all these reasons,

THIS COURT ORDERS THAT:

This motion for consolidation either to be heard on September 16 and 17, 2003 or alternatively to be heard on October 21 and 22, 2003, is dismissed with costs.

A copy of these Reasons for Order and Order shall be filed in Court files Nos. T-122-02 and T-1652-02.

                     Pierre Blais                          

                J.F.C.

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2112-02

STYLE OF CAUSE: H. LUNDBECK A/S and LUNDBECK CANADA INC.

                                                                             v.

THE MINISTER OF HEALTH CANADA and PHARMASCIENCE

PLACE OF HEARING:                                   OTTAWA, ONTARIO

DATE OF HEARING:                    SEPTEMBER 2, 2003

REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS

DATED:           SEPTEMBER 4, 2003

APPEARANCES:

Ms. Kamleh Nicola                                              FOR GENPHARM INC.

Ms. Sara Zborovski                                            FOR GENPHARM INC.

Ms. Heather Watts                                               FOR COBALT PHARMACEUTICAL INC.

SOLICITORS OF RECORD:

Ms. Pascale-Catherine Guay                                             FOR THE MINISTER OF HEALTH