Date: 20101129
Docket: T-470-08
Citation: 2010 FC 1204
BETWEEN:
|
|
TEVA NEUROSCIENCE G.P.-S.E.N.C
|
|
|
|
Applicant
(Moving Party)
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
REASONS
FOR ORDER
HUGHES J.
[1]
This motion brought
by Teva Neuroscience G.P. –S.E.N.C. arises from a Judgment that I gave in these
proceedings on November 12, 2008 allowing Teva’s application for judicial
review and sending the matter at hand back to the Patented Medicines Prices
Review Board for re-determination. Teva now seeks an Order that the
re-determination of the matter is to take place on the existing record. For the
reasons that follow I am dismissing this motion. The parties are agreed that no
costs are to be awarded.
[2]
In brief, as to the
history of this matter, Teva has for a number of years sold in Canada a drug called Copaxone. The Patented Medicines Prices
Review Board, pursuant to its powers under the Patent Act, RSC 1985,
C.P.-4, conducted an inquiry and hearing as to whether the price at which that
drug was sold was “excessive”. The Board determined that the price was
“excessive” and imposed certain remedies that required Teva to pay over two
million dollars to the Crown. Teva sought judicial review of that decision and
the matter was heard by me. In my decision dated November 12, 2009 (2009 FC
1155) I allowed the judicial review. My conclusion as stated in paragraph 76 of
the Reasons was:
[76] Both the decisions of February 25, 2008 and May 12, 2008 will
be set aside. The matter will be returned to the Board for redetermination
preferably by a different panel if sufficient members can be provided for that
purpose. In redetermining the matter the Board must consider all factors in
section 85(1) and provide intelligible, clear reasons as to the consideration
and weight given to each factor. If the Board is unable to reach a conclusion
having regard to all factors under section 85(1) it must say so and then
consider section 85(2) and provide intelligible, clear reasoning as to its
consideration. The Board should not simply give lip service to these matters
and arrive at the same result. The Board should give a thorough reconsideration
of the matter without considering that it is in any way bound to arrive at the
same result.
[3]
The Judgment itself
was as follows:
THIS
COURT ADJUDGES that:
1.
The two
applications are allowed;
2.
The decisions
of the Board dated February 28, 2008 and May 12, 2009 are quashed and returned
for redetermination by a differently constituted Board, if available, in
accordance with these reasons;
3.
Teva is entitled to
its costs. Counsel should within two weeks from the date of this decision
provide brief written submissions as to a lump sum quantum of costs.
[4]
I gave a further
Judgment, with Reasons, as to costs (2009 FC 1206) which is not relevant here.
[5]
No appeal was taken
in respect of my Judgment, it is a final Judgment.
[6]
The redetermination
was taken up by the Board which has assigned different people to deal with the
matter. The hearing of the redetermination has not yet occurred. It is
scheduled for March 2011.
[7]
The matter that gives
rise to Teva’s motion concerns an Order of the Board allowing Board Staff (in
effect the party opposite Teva in the Board proceedings) to introduce further
evidence into the record to be placed before the Board at the hearing of the
redetermination.
[8]
On September 15, 2010
the Board Staff served on Teva a Notice of Motion and supporting affidavit in
which the Board was requested to permit the Board Staff to file “additional
evidence to supplement the existing evidentiary record”. The evidence was described
in the supporting affidavit as follows:
a.
Board Staff’s
updated calculation of excess revenue for Copaxone from May 2002 to June 2010;
b.
The PMPRB’s
NEWS letter excerpts from January 2007 to April 2010 relating to the Consumer
Price Index (CPI) adjustment factors;
c.
Board Staff’s
table outlining the International Therapeutic Class Comparison for Copaxone;
d.
Board Staff’s
summary of the international prices of Copaxone (based on the Respondent’s
Block 5 filings, and Board Staff’s publicly available sources); and
e.
The Respondent’s
“Form 2 filings” (price and sales information) in relation to Copaxone from
January 2007 to June 2010.
[9]
The basis for the
request by the Board Staff to permit this additional evidence to be filed was
set out in its Notice of Motion as follows:
4.
At the
Redetermination Hearing, Board Staff intends to argue that the Redetermination
Panel should find that Copaxone is and has been sold at an excessive price in Canada since 2004.
5.
Board Staff
seeks an order allowing it to file supplementary evidence at the Redetermination
Hearing. This evidence consists mainly of the most recent regulatory filings of
the Respondent, which the Redetermination Panel will require in order to properly
adjudicate the matter.
6.
Board staff
submits that this additional evidence must be put before the Redetermination
Panel so that it may be able to:
a. comply with the order of the Federal Court by
considering all of the factors set out in subsection 85(1) the Patent Act; and
b. calculate the current amount of excess revenues
using the most current price and sales information which has been filed by the
Respondent since the Original Hearing.
7.
Board Staff
submits that this additional evidence is based on publicly available
information and the Respondent’s own regulatory filings with the Board since
the Original Hearing and Original Decisions. The information is unlikely to be
contentious.
8.
Board Staff
submits that the additional evidence represents an update of the evidence that
was already before the Board at the Original Hearing. All of the additional
evidence must be submitted so that the Board can make proper decision on
whether Copaxone is being or has been sold at an excessive price in any market
in Canada.
[10]
The Board made an
Order, recorded in the transcript of the hearing of the motion on October 4,
2010, permitting the evidence to be filed and providing for terms as to
responding evidence and the postponement of the date of the hearing (now
further postponed to March 2011). The Board said:
What we have decided to do is, in effect,
allow the Board’s motion on the following terms.
The first is that the Board – there are
four elements to this and then if the parties have questions or clarification
points they wish to make, that’s fine.
The first point is that the Board Staff
will be permitted to file the evidence as outlined in its Motion Record that
relates to the time period between January 2008 to the date of the 2010 filing
most recent to the yet to be determined hearing date.
Two, the Panel accepts Teva’s submissions
that absent an adjournment there would be indeed prejudice in this case because
we are bringing in evidence relating to the actual assessment of excessive
price. Consequently, the hearing is going to be adjourned to permit Teva to
file additional evidence in accordance with this decision.
Third, the Panel will not admit any
evidence which relates to the time period preceding January 2008 unless the
evidence could be demonstrated that it couldn’t be obtained by the exercise of
due diligence in preparation for and during the original hearing. We will leave
it to the parties to raise objections on that point with respect to the
evidence at the relevant time rather than try to address that today with
respect to any particular piece of evidence.
Four, it is the intention of this Panel
to set the date for this hearing on the 15th, 16th and 17th
of December 2010 and that the Secretary of the Board will be in contact with
the parties about the timelines for the submission of evidence.
[11]
Shortly thereafter
Teva filed the present motion with this Court for an Order that the
redetermination must take place on the existing record, that is, the additional
evidence should not be considered by the Board. On the hearing of the motion
before me counsel for the Attorney General raised an issue as to whether the
motion was filed in a timely manner but that argument was not vigorously pursued.
I am satisfied as to timeliness.
[12]
I asked Teva’s
Counsel to set out the basis upon which it would be argued that I have
jurisdiction to make the Order sought. The answer was that Teva relies upon
Rules 397 and 399 of the Federal Courts Rules of Practice which, it was
argued, allow me to revisit and revise my Judgment of November 12, 2009 to
insert words to the effect that the redetermination is to be made “on the
existing record”.
[13]
This is not a fresh
application for judicial review of the Board’s decision to allow the additional
evidence into the record. Counsel for each party are agreed that, except for
exceptional circumstances, the Court on a judicial review application should not
review interlocutory decisions made by a Tribunal in advance of a final
decision (see e.g. Szczecka v. Canada (MEI) (1993), 116 DLR (4th)
3333 (FCA) para 4; Sanofi-Aventis Canada Inc. v. Canada (AG),
2009 FC 965 at paras. 25-26). Instead, Teva argues that Rules 397 and 399 give
me the power to revise my Judgment of November 12, 2009 to state that no
additional evidence should be allowed on the redetermination.
[14]
Rule 397 permits the
Court to reconsider an Order that it made on the basis that it does not accord
with the reasons, or some matter has been overlooked or omitted or there has
been a clerical error:
|
Motion
to reconsider
397. (1)
Within 10 days after the making of an order, or within such other time as the
Court may allow, a party may serve and file a notice of motion to request
that the Court, as constituted at the time the order was made, reconsider its
terms on the ground that
(a) the order does not accord with any
reasons given for it; or
(b) a matter that should have been dealt with
has been overlooked or accidentally omitted.
Mistakes
(2) Clerical mistakes, errors or omissions in
an order may at any time be corrected by the Court.
|
Réexamen
397. (1) Dans les
10 jours après qu’une ordonnance a été rendue ou dans tout autre
délai accordé par la
Cour, une partie peut signifier et déposer un avis de requête demandant
à la Cour qui a
rendu l’ordonnance, telle qu’elle était constituée à ce moment, d’en examiner
de nouveau les termes, mais seulement pour l’une ou l’autre des raisons
suivantes :
a)
l’ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés
pour la justifier;
b) une
question qui aurait dû être traitée a été oubliée ou omise involontairement.
Erreurs
(2) Les fautes de
transcription, les erreurs et les omissions contenues dans les ordonnances
peuvent être corrigées à tout moment par la Cour.
|
[15]
In the present case
Teva argues that it is “manifest” from the Reasons given (2009 FC 1155) that I
had intended, when ordering a redetermination, that no new evidence would be
permitted. Reference is made to the decision of the Federal Court of Appeal in Polylok
Corporation v. Montreal Fast Print (1975) Ltd., [1984] 1 FC 713 at
page 720 where Thurlow C.J. for the Court wrote in dealing with Rule 337(6)
which is essentially the same as Rule 397:
That
leaves for consideration only the wording “errors arising therein from any
accidental slip or omission” in Rule 337(6). Having regard to the broad
inherent authority exercised in times past by Courts to correct formal
judgments or orders to make them accord with the judgment as pronounced or
intended, it appears to me that this portion of the Rule should be given a
scope which is broad enough to enable the Court to amend so as to make a
judgment conform to what was intended when it was pronounced, but that it
cannot and should not be used to authorize a judge to review or rescind his
judgment or to alter it so as to reflect a change of mind as to what the
judgment should have been.
[16]
I take these words as
directing the Court to be very cautious before revising a Judgment under the
provisions of that Rule. I ordered that the matter be “redetermined” I do not
find any basis for amending the Judgment under Rule 397.
[17]
Rule 399 provides
that an Order may be set aside or varied for a number of reasons, the one
relied upon by Teva is that the attempt by the Board Staff and subsequent Board
Order permitting additional evidence is a matter arising “subsequent to the making
of the order” thus requiring variance of the Order. Rule 399 provides:
|
Setting aside or variance
399. (1) On
motion, the Court may set aside or vary an order that was made
(a) ex parte; or
(b) in the absence of a
party who failed to appear by accident or mistake or by reason of
insufficient notice of the proceeding,
if the
party against whom the order is made discloses a prima facie case why the
order should not have been made.
Setting aside or variance
(2) On motion, the Court may set aside or
vary an order
(a) by reason of a matter that arose or was
discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
Effect of order
(3) Unless the Court orders otherwise, the
setting aside or variance of an order under subsection (1) or (2) does not
affect the validity or character of anything done or not done before the
order was set aside or varied.
|
Annulation sur preuve
prima
facie
399. (1) La Cour
peut, sur requête, annuler ou modifier l’une des ordonnances suivantes, si la
partie contre laquelle elle a été rendue présente une preuve prima facie démontrant
pourquoi elle n’aurait pas dû être rendue :
a) toute
ordonnance rendue sur requête ex parte;
b) toute
ordonnance rendue en l’absence d’une partie qui n’a pas comparu par suite
d’un événement fortuit ou d’une erreur ou à cause d’un avis insuffisant de l’instance.
Annulation
(2) La Cour peut,
sur requête, annuler ou modifier une ordonnance dans l’un ou
l’autre des cas
suivants :
a) des faits
nouveaux sont survenus ou ont été découverts après que l’ordonnance
a été rendue;
b)
l’ordonnance a été obtenue par fraude.
Effet de
l’ordonnance
(3) Sauf ordonnance
contraire de la Cour, l’annulation ou la modification d’une ordonnance en
vertu des paragraphes (1) ou (2) ne porte pas atteinte à la validité ou à la
nature des actes ou omissions antérieurs à cette annulation ou modification.
|
[18]
Teva’s counsel relies
on two cases in support of its submissions. The first is a decision of Gibson
J. of this Court in Smith v. Canada (MCI) 2007 FC 712 in which
another Judge had refused to stay a removal order of a person suffering from
mental disorder on the basis that, upon returning to his home country, that
person would be escorted to a nearby hospital. This condition was made on the
basis of an undertaking given by the Crown to that effect. In fact this never
happened. Relatives of the removed person sought a reversal of the order
refusing a stay which, in effect, would mean the return of the person to Canada. Justice Gibson did that. In his Reasons he considered
relevant jurisprudence including Ayangma and Proctor & Gamble
at paragraphs 20-23:
20 In
Ayangma v. Her Majesty the Queen, Justice Pelletier, for the Court, wrote at
paragraphs [2] and [3]:
Rule
399(2)(a) authorizes the Court to vary or set aside an order: "by reason
of a matter that arose or was discovered subsequent to the making of the
order".
The jurisprudence establishes
three conditions which must be satisfied before the Court will intervene:
1 - the newly discovered
information must be a "matter" with[in] the meaning of the Rule;
2 - the "matter"
must not be one which was discoverable prior to the making of the order by the
exercise of due diligence; and
3 - the "matter"
must be something which would have a determining influence on the decision in
question.
In the foregoing quotation, and in particular
in the third condition, Justice Pelletier provides that the "matter"
at issue must be something which "...would have a determining influence..."
on the decision in question. Given that the Order sought to be set aside or
varied may, as here in respect of one order, have been made by a different
judge from the one considering the motion, I do not read the words "would
have a determining influence" as conclusive but rather as conditional as
in "might have a determining influence".
21
In Proctor & Gamble Pharmaceuticals Canada Inc. v. Canada (Minister
of Health), my colleague Justice Snider wrote:
In
satisfying the first part of the test, P & G must convince me that this is
a new matter. The term "matter" is a word of broad import and may
encompass something broader than fresh evidence... . "Matter" refers
to an element of the relief sought as opposed to an argument raised before the
court... . The new matter must be relevant to the facts giving rise to the
original Order... .
[citations omitted]
3) Matter
that arose or was discovered subsequent to the making of the Order at issue
a) My
Order dismissing the underlying application for leave and for judicial review
22 The
alleged "matter" arising or discovered subsequent to the making of my
Order dismissing the underlying application for leave and for judicial review,
as with Deputy Justice Lagacé's Order denying a stay of removal, was the failure
of the escorting officers, on their arrival with the Applicant in Kingston,
Jamaica to ensure that he was "...transported from the airport to the
Emergency Department at the Kingston Public Hospital on North Street, where he
will be seen by Dr. Reed". That he was not so "transported" and
that he did not, at the urging of his escorts from Canada, make his own way to
the Kingston Public Hospital to meet with Dr. Reed, was not in issue before the
Court. I am satisfied this constitutes a "matter" within the
contemplation of Rule 399(2)(a). The question then arises, was it likely, or
even conceivable, that Deputy Justice Lagacé relied on the undertaking by way
of affidavit on this issue that was before him. In relation to my own Order,
the question must be whether, if I had known about the issue regarding the
evidence before Deputy Justice Lagacé, would I nonetheless have reached the
decision that I did.
23 I
conclude that the answer in relation to my Order must be that I would not, at
least at the time that I made my Order, have made the Order that I did. Rather,
since there was no compulsion in law for me to determine the question of leave
on the application for leave and for judicial review when I did, it would have
been the better course of action for me to have set aside the question before
me until the issue surrounding Deputy Justice Lagacé's Order was resolved. In
so doing, I would have preserved the jurisdiction of this Court to deal with
that controversy, if necessary, and in no way would I have prejudiced either
the Applicant or the Respondent.
[19]
I conclude from this
analysis that the “matter arising subsequent to the Order” must be one that, if
not had been discovered or arisen previous to the making of the Order would
have been relevant to the factual basis giving rise to the original Order.
[20]
The other case relied
upon by Teva by Teva is Canwell Enviro-Industries Ltd. v. Baker Petrolite
Corporation, 2002 FCA 481 in which the Court amended an earlier order
giving an award of damages so as to include an award of interest as well.
Strayer JA for the Court wrote at paragraphs 6 & 7:
6 I
believe we should treat this as a motion under paragraph 399(2)(a) and sub-rule
(3) which provide as follows:
399(2) On
motion, the Court may set aside or vary an order that was made
(a) by reason of a matter
that arose or was discovered subsequent to the making of the order;....
(3) Unless the Court
orders otherwise, the setting aside or variance of an order under subsection
(1) or (2) does not affect the validity or character of anything done or not
done before the order was set aside or varied.
*
* *
399(2) La
Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre
des cas suivants :
a) des
faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été
rendue; ....
(3) Sauf
ordonnance contraire de la Cour, l'annulation ou la modification d'une
ordonnance en vertu des paragraphes (1) ou (2) ne porte pas atteinte à la
validité ou à la nature des actes ou omissions antérieurs à cette annulation ou
modification.
It was the natural consequence of our judgment
setting aside the trial judge's judgment that this removed any equitable claim
which the plaintiffs had to the money paid to them. It was not unreasonable on
the part of the defendants to assume that the plaintiffs would repay such money
to the City together with the value of the money (i.e. interest) enjoyed by
them during the period when they were not equitably entitled to it. The fact
that they would object to payment of interest did not become apparent until
well after disposition of the appeal.
7 As
it is fully consistent with our decision of April 29, 2002 setting aside the
trial judgment that the parties should as far as possible be returned to the
position they would have enjoyed had there been no such trial judgment, and as
the plaintiffs' unwillingness to acknowledge this principle constitutes a new
matter, this Court should order pre-judgment (i.e. prior to our judgment of
April 29, 2002 going back to October 18, 2001), and post-judgment (subsequent
to that judgment) interest up until the day of full payment of these interest
charges, at rates for the relevant times calculated, as provided in
sub-sections 36(1) and 37(1) of the Federal Court Act, on the basis of the law
of Alberta, the province where the course of action arose vis à vis the City of
Medicine Hat. The parties have not provided the Court with precise terms of
that law.
[21]
This case I regard as
being directed essentially to a matter overlooked even though the addition of
interest was triggered by a defendant’s refusal to pay interest subsequent to
the original judgment.
[22]
In the present case I
gave a Judgment that the matter be “redetermined”. There has been surprisingly
little jurisprudence as to what that word means. In Torres v. Canada (MEI),
[1983] 2 F.C. 81 Heald J.A. for the majority wrote at pages 95 and 96:
|
In my view, the redetermination is, in essence, a review
of the Minister’s decision. Neither the statute nor the regulations provide a
definition of “redetermination” as used in this statutory scheme. However,
The Living Webster Encylopedic Dictionary of the English Language gives the
following definition of “redetermine”: “…To come again to a decision; to
ascertain after reinvestigation.” I think the Board is required to review the
Minister’s decision and to come to its own opinion as to the correctness of
that decision.
|
À mon avis, ce réexamen constitue
essentiellement une révision de la décision du Ministre. Ni la loi ni le
règlement ne donnent une définition du mot « réexamen » employé
dans cette disposition législative. Voici toutefois la dédinition que donne
The Living Webster Encyclopedic Dictionary of the English Language du mot « redetermine »
(réexaminer) : [TRADUCTION] « … Arriver de nouveau à une décision;
reconnaître pour vrai après une nouvelle enquête ». Je crois que la
Commission est tenue de réexaminer la décision du Ministre et d’arriver à sa
propre conclusion sur le bien-fondé de cette décision.
|
[23]
That
decision was considering “redetermination” in the context of the then existing
Immigration Act and emphasizes that much depends on the statutory framework of
the relevant legislation.
[24]
The
Supreme Court of Canada in Chandler v. Alberta Association of Architects,
[1989] 2 S.C.R. 848, in a split decision, considered what a Board was to do if
a matter was returned to a Board for a continuation of the original
proceedings. Sopinka J. for the majority wrote that, in such circumstances,
additional evidence could be received. At page 86 he wrote:
|
On the continuation of the Board’s original proceedings,
however, either party should be allowed to supplement the evidence and make
further representations which are pertinent to disposition of the matter in
accordance with the Act and Regulation. This will enable the appellants to
address, frontally, the issue as to what recommendations, if any, the Board
ought to make.
|
Cependant, à la continuation des
procédures initiales par la Commission, chaque partie devrait pouvoir
compléter la preuve et présenter d’autres arguments pertinents aux fins de
régler l’affaire conformément à la Loi et au Règlements. Cela permettra aux
appelants d’aborder directement la question des recommandations que la
Commission devrait faire, le cas échéant.
|
[25]
Standing
back and looking at the circumstances of the present situation, I gave a
Judgment in November 2009 requiring that a matter be “redetermined”. I gave no
further directions as to how that redetermination was to be conducted, I gave
no shopping list as to what could or could not be done. I view the present
motion as one which, in effect, requires the Court to exercise continuing supervisory
jurisdiction over the steps the Board may take or refuse to take in the course
of conducting its redetermination. This is not the Court’s function. If and
when the Board makes a final decision one of the parties may, if so advised,
apply for judicial review. One of the grounds asserted may be that the
admission of further evidence (or whatever other procedural step is at issue) did
not constitute a proper redetermination. That is a matter for another day, once
the final decision of the Board is made. Teva argues that it would be wasteful
to await a full hearing and final determination. That may be, but wastefulness
alone is not a reason to intervene now if no proper basis for doing so has been
made out. It may be, at the end of the day, that the procedures invoked by the
Board had no effect on the final outcome. The Board itself is presumably
equally aware that it should not make rulings of such a nature that would
require its final determination to be set aside.
[26]
Therefore,
I will dismiss the motion.
“Roger
T. Hughes”
Toronto,
Ontario
November
29, 2010
Email this Content