Date: 20101207
Docket: T-2221-07
Citation: 2010
FC 1236
Ottawa, Ontario,
December 7, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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PFIZER CANADA INC. AND PHARMACIA
ATKIEBOLAG
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Applicants
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and
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THE MINISTER OF HEALTH AND
PHARMASCIENCE INC.
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
Pfizer
Canada Inc. and Pharmacia Atkiebolag, collectively “Pfizer”, successfully
prosecuted an application for a prohibition order pursuant to section 6 of the Patented
Medicines (Notice of Compliance) Regulations, SOR/93-133 (the “PMNOC
Regulations”). On December 18, 2009, an Order was issued prohibiting the
Minister of Health from issuing a Notice of Compliance to Pharmascience Inc.
(“Pharmascience”) until the expiry of Canadian Patent No. 1,339,132. Pfizer was
also awarded its costs on the application.
[2]
By Notice
of Motion filed pursuant to the Federal Courts Rules, SOR/98-106 (the
“Rules”), Pfizer seeks directions concerning the assessment of its costs.
Pharmascience filed a Responding Motion Record on May 28, 2010. By letter dated
August 18, 2010, the Minister advised that he would not participate in this
motion.
[3]
Briefly,
Pfizer seeks the assessment of its costs at an elevated tariff, that is midway
of Column IV of Tariff B to the Rules, together with directions concerning the
number of counsel for whom costs should be awarded and a 25% increase in costs
as a penalty for Pharmascience’s alleged failure to pursue all grounds of
invalidity alleged in its Notice of Allegation.
[4]
For its
part, Pharmascience first argued that Pfizer is not entitled to the benefit of
Rule 403, that is directions in the matter of assessing costs, since it filed
its motion in that regard beyond the time limit for doing so and has failed to
satisfy the test for an extension of time. As well, Pharmascience argues that
should the Court exercise its discretion to extend the time for Pfizer’s
motion, higher costs as sought by Pfizer should not be authorized.
[5]
I will
first address the timeliness of Pfizer’s motion and its request for an
extension of time.
[6]
By
requesting an extension of time in its written submissions filed as part
of the Motion Record, Pfizer acknowledges that its motion for directions
pursuant to Rule 403 is late. The extension of time is requested in the
Notice of Motion. In the same written submissions, Pfizer purported to
explain why the motion was filed beyond the time period specified in Rule 403
and focused on
the lack of prejudice resulting to Pharmascience as a result of the late filing
of the Pfizer motion.
[7]
Pharmascience
points out that Pfizer provided no affidavit evidence as to the reason
for the delay in filing the motion nor concerning its continuing intention to
proceed with a motion pursuant to Rule 403. Pharmascience submits that
arguments presented in written submissions are no substitute for the lack of
evidence that is required in support of a request for the Court to exercise its
discretion in extending the time set out in Rule 403.
[8]
Rule 403 provides
as follows:
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Motion
for directions
403.
(1) A party may request that directions be given to the assessment officer
respecting any matter referred to in rule 400,
(a)
by serving and filing a notice of motion within 30 days after judgment has
been pronounced; or
(b)
in a motion for judgment under subsection 394(2).
Motion
after judgment
(2)
A motion may be brought under paragraph (1)(a) whether or not the judgment
included an order concerning costs.
Same
judge or prothonotary
(3)
A motion under paragraph (1)(a) shall be brought before the judge or
prothonotary who signed the judgment.
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Requête
pour directives
403.
(1) Une partie peut demander que des directives soient données à l’officier
taxateur au sujet des questions visées à la règle 400 :
a)
soit en signifiant et en déposant un avis de requête dans les 30 jours
suivant le prononcé du jugement;
b)
soit par voie de requête au moment de la présentation de la requête pour
jugement selon le paragraphe 394(2).
Précisions
(2)
La requête visée à l’alinéa (1)a) peut être présentée que le jugement
comporte ou non une ordonnance sur les dépens.
Présentation
de la requête
(3)
La requête visée à l’alinéa (1)a) est présentée au juge ou au protonotaire
qui a signé le jugement.
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[9]
Rule 8
governs applications for the extension of time. Rules 8(1) and 8(2) are
relevant and provide as follows:
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8.
(1) On motion, the Court may extend or abridge a period provided by these
Rules or fixed by an order.
When
motion may be brought
(2)
A motion for an extension of time may be brought before or after the end of
the period sought to be extended.
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8.
(1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les
présentes règles ou fixé par ordonnance.
Moment
de la présentation de la requête
(2)
La requête visant la prorogation d’un délai peut être présentée avant ou
après l’expiration du délai.
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[10]
The
decision in Canada v. Hennelly (1999), 244 N.R. 399 (C.A.) sets out four criteria that are
to be considered upon an application for an extension of time. In order to
obtain an extension of time, an applicant must show first, a continuing
intention to pursue the application; second that the application has some
merit; third that no prejudice arises from the delay; and fourth, that a
reasonable explanation for the delay exists. The underlying consideration when
weighing the four criteria is that justice must be done between the parties;
see Toronto Sun Wah Trading Inc. v. Canada (Attorney General) (2008), 383
N.R. 340 (F.C.A.).
[11]
As noted
above, Rule 403 provides that a motion for directions is to be brought “by
serving and filing a notice of motion within 30 days after judgment has been
pronounced” (that is Rule 403(1)(a)). The purpose of providing a specific
deadline in Rule 403 is to ensure that the matter is sufficiently fresh in the
mind of the Court; see Smerchanski v. Minister of National Revenue,
[1979] 1 F.C. 801.
[12]
The final
Judgment in this matter was rendered on December 18, 2009. The Index of
Recorded Entries indicates that this Judgment was entered in the Judgment and
Order Book on that date. The period from December 21, 2009 to January 7, 2010
is the Christmas recess for the Court and the text of Rule 6(3) of the
Federal Courts Rules clearly states that the Christmas recess is
to be excluded from the calculation of time periods under the Rules. This
means that the 30 day period from the date of final judgment, excluding the
Christmas recess, expired on February 4, 2010. Yet, as noted above, Pfizer did
not file its motion for directions until May 26, 2010, a delay of some 3 months
and 3 weeks after the time limit.
[13]
In asking
the Court to exercise its discretion to extend the time for bringing this
motion, Pfizer points simply to the lack of prejudice to Pharmascience. With
justification, Pharmascience responds by saying that the lack of prejudice is
but one of the elements to be considered and weighed by the Court in deciding
to exercise its discretion.
[14]
In reply
written representations, Counsel for Pfizer submitted that Pfizer was awaiting
the outcome of a related proceeding pursuant to the PMNOC Regulations, that is
Cause T-124-08, involving Pfizer as the Applicant and the same patent and the
same drug, that is Latanoprost. In oral argument, Pfizer submitted that it was
reasonable to wait for the outcome of the related proceeding so that Pfizer
could bring its motions for directions in the two cases at the same time, for
the sake of economy of the parties’ and the Court’s time.
[15]
The final
Judgment in Cause T-124-08 was issued on April 26, 2010. A motion for
directions pursuant to Rule 403 was filed by Pfizer on May 26, 2010.
[16]
In support
of its request for extraordinary relief, Pfizer attempts to distinguish this
case from the decision in Maytag Corp. v. Whirlpool Corp. (2001), 14
C.P.R. (4th) 368 (F.C.A.). In Maytag, a matter had progressed from the
Trial Division of the Federal Court of Canada, as it then was, to the Federal
Court of Appeal and ultimately to the Supreme Court of Canada. Maytag was
successful and was awarded costs at each stage of the litigation. After the
Court of Appeal decision, Maytag failed to pursue directions for costs,
deciding instead to wait for the Supreme Court of Canada to render its
decision. As a result, Maytag’s motion was filed more than two years after the expiry
of the 30 day deadline.
[17]
The
Federal Court of Appeal held that waiting for the decision of the Supreme Court
of Canada was not a valid reason to delay filing the motion for directions.
Pfizer argues that the lengthy two year delay in that case makes it
exceptional. In my opinion, this argument cannot succeed. Waiting to file a
motion for directions because of an impending decision in a similar, unrelated
case is much less compelling than waiting for a Supreme Court of Canada appeal
decision on the same case.
[18]
Counsel
for Pharmascience cited a recent decision of Justice Pinard in Collins v. Canada (Attorney General), 2010 FC 949. In that
decision, Justice Pinard refused an extension of time for the filing of an
application record and said the following:
The requested extension of time is denied
on the main ground that the applicant has failed to satisfy the Court that a
reasonable explanation for the delay exists.
[19]
Counsel
for Pfizer submits that a distinction can be drawn between those cases where an
extension of time is refused in applications for judicial review and the
present case. Pfizer argues that applications for judicial review can involve
substantive rights whereas the extension of time in this case is sought simply
for the purpose of allowing the Court to deal with a procedural matter, that is
the manner in which costs will be assessed, the award of costs already having
been made.
[20]
I am not
persuaded by this argument. The Rules clearly specify that a motion for
directions is to be filed within 30 days of a final judgment. Pfizer waited 3 ½
months before filing its motion for directions. Pfizer did not present an
evidentiary basis to justify the exercise of discretion to extend the time
pursuant to Rule 403. Pfizer has failed to demonstrate, by acceptable evidence,
a continuing intention to seek an extension of time. Pfizer has failed to show
why this Court should detour from the jurisprudence which has set out a
framework within which the discretion to extend time should be exercised.
[21]
I agree
with the submissions of Pharmascience that Pfizer has failed to establish the
evidentiary basis upon which it seeks the positive exercise of discretion for
the extension of time. I agree with the arguments of Pharmascience that Pfizer
has failed to offer an adequate explanation for the delay and has failed to
demonstrate, as a consequence of the lack of evidence, a continuing intention
to bring a motion for directions.
[22]
As noted
by the Court in the decision in Hennelly, four factors are to be
considered and in my opinion, this means that an applicant, such as Pfizer,
must address each of those four factors. In the present case, Pfizer has not adequately
addressed the reason for the delay.
[23]
In the
result, Pfizer’s motion for directions is dismissed. Pfizer is entitled to its
costs of the application as per the Order of December 18, 2009, to be assessed
by an assessment officer in the absence of directions. Pharmascience shall have
its costs of this motion.
[24]
If the
parties cannot agree on costs, then brief submissions can be made, not
exceeding two (2) pages, such submissions to be served and filed by
Pharmascience by December 14, 2010 and by Pfizer by December 20, 2010.
ORDER
THIS COURT ORDERS that the motion for directions is
dismissed with costs to Pharmascience in accordance with paragraph 24 above.
“E.
Heneghan”
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