Date: 20100614
Docket: T-1508-05
Citation: 2010 FC 643
Ottawa, Ontario, June 14,
2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
JANSSEN-ORTHO INC.
and DAIICHI SANKYO COMPANY, LIMITED
Applicants
and
APOTEX INC. and
THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
[1]
Out
of respect for, and deference to, the majority judgment in Apotex Inc. v.
Janssen-Ortho Inc. and Daiichi Sankyo Company, Limited and the Minister of
Health, 2009 FCA 212, coupled with the independence needed to fulfil the
responsibilities of a judge of this Court, to ensure both are attained without
compromising either, the following decision was reached.
[2]
To
have done so requires an understanding of how the undersigned’s decision was
reached in Janssen-Ortho Inc. and Daiichi Sankyo Company, Limited v. Apotex
Inc. and the Minister of Health, 2008 FC 744. The first one hundred
paragraphs of Reasons for Judgment endorsed the position of the Applicants. As
was clearly stated, at the end of the last day of Court sessions, the position
of one party on certain key aspects would be chosen over that of the other, as
both parties had prepared two distinct comprehensive positions on certain
specific aspects of the case.
[3]
It
is recalled, to paraphrase the undersigned, that to avoid being pedantic,
acceptance of certain interpretations would be integral. The example given, in
this regard, at the time is that, just as a woman may either be pregnant or not
pregnant, when said to be expecting, as she cannot be halfway pregnant; when
considered comprehensive one position of explanations would be chosen over
another.
[4]
Whereas
on other matters, where required, variations, of interpretation in the
pleadings would be dissected through judicial analysis, as needed. That, too,
was done, as the parties were told, it would be.
[5]
Thus,
the next one hundred and fifty paragraphs of judicial analysis represented the
undersigned’s interpretation of the subject-matter in regard to elements which
could not simply be endorsed. Therefore, the first one hundred paragraphs,
together, with these additional one hundred and fifty paragraphs of reasons
lead to the conclusions by which the 2008 Federal Court judgment of the
undersigned was reached.
[6]
In
addition, as the judgment of the undersigned has been borne out in subsequent
interpretation of the same subject-matter outside of Canada through U.K. judgments (Generics
(UK) Limited v. Daiichi Pharmaceutical Co. Ltd. And Daiichi Sankyo Co. Ltd.,
[2008] EWHC 2413 in the High Court of Justice, Chancery Division, Patents Court
and also in Generics (UK) Ltd v. Daiichi Pharmaceutical Co Ltd and Daiichi
Sankyo Co Ltd, [2009] EWCA Civ 646 in the Supreme Court of Judicature Court
of Appeal (Civil Division) on Appeal from the High Court of Justice, Chancery
Division, Patents Court) and by subsequent expert pronouncements and
interpretations thereto, the undersigned is caught in a situation where he
would either deviate from deference to the majority in the Federal Court of
Appeal judgment, or from the judicial responsibility of independent analysis
through the proverbial state of being between a rock and a hard place.
[7]
Thus,
after time and much reflection, subsequent to receiving the new written
pleadings of the parties, the undersigned recognizes he cannot in good
conscience, in the integrity of spirit necessary for intellectual honesty,
required for the independence of a judge, sit on this matter, yet, again,
without reaching the same conclusions through the same reasons. As a result, in
fairness to the parties, the following decision has been reached in the Order
below.
ORDER
THIS JUDGE ORDERS that he recuse himself from sitting on this matter; and that he
remit to the Chief Justice of this Court the case to be heard by a different
judge of this Court.
“Michel M.J. Shore”
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