Date: 20080930
Docket: T-470-08
Citation: 2008 FC 1091
Toronto, Ontario, September 30, 2008
PRESENT: Madam Prothonotary Milczynski
BETWEEN:
TEVA
NEUROSCIENCE G.P.-S.E.N.C.
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Teva
Neuroscience G.P.-S.E.N.C. (“Teva”) seeks judicial review of the Patented
Medicine Prices Review Board’s decision dated February 25, 2008 that Teva’s
drug Copaxone was priced excessively, as well as the Board’s final order and
reasons dated May 12, 2008 that Teva was required to make payment to Her
Majesty the Queen in Right of Canada as a consequence.
[2]
On this
motion, Teva seeks leave to file portions of its supporting affidavit and
application record in accordance with Rule 152 of the Federal Court Rules,
and to vary the schedule in this matter. Teva has filed the consent of the
Respondent and a draft order. For the reasons below, however, the motion is
dismissed.
[3]
Rule 152
of the Federal Courts Rules provides that where material is required by
law to be treated confidentially or where the Court has so ordered, a party may
file the material in such a manner that the public does not have access to that
part of the Court file.
[4]
Pursuant
to Rule 151 of the Rules, before making such an extraordinary order, the
Court must be satisfied that the material should be treated as confidential,
outweighing the public interest in open and accessible court proceedings. This
is not a casual exercise nor should the exceptional relief sought by any party be
taken lightly. The test is clear, as set out in the Supreme Court of Canada
decision in Sierra Club of Canada v. Canada (Minister of Finance), [2002]
2 S.C.R. 522, the fundamental question is whether the right to freedom of
expression and the integrity and principle of an open judicial process should
be compromised. A confidentiality order should only be granted when there is
sufficient evidence before the Court to satisfy the Court that it is necessary
to prevent a serious risk to an important interest, including a commercial
interest, and whether the salutary benefits of the order including the right of
the litigants to a fair trial outweigh its effects on the public interest in
open courts.
[5]
In this
case, Teva seeks to have two categories of information sealed. As defined in
the draft order, they are:
(i)
the
information that it and the Patented Medicine Prices Review Board staff agreed
to treat as confidential during the proceeding before the Board; and
(ii)
those
documents which the Patented Medicine Prices Review Board ordered should be
treated as confidential.
[6]
Both
categories of information are more generally described in the affidavit of Brad
Elberg, a lawyer with the law firm representing Teva. The information that was
kept confidential by agreement is described as “proprietary pricing information
about Copaxone’s Average Transaction Price, its Maximum Non-Excessive Price,
and other confidential information that Teva was required to provide to Board
Staff as part of its regulatory filing under the Patent Act”
(specifically this information is what is described in the regulatory filing
Block 4).
[7]
In support
of maintaining the confidentiality of this information in this proceeding, Mr.
Elberg’s affidavit states that he is advised by Teva’s General Manager, Mr. Jon
Congleton, that “Teva has always considered this information to be
confidential, has always treated it as confidential, would not disclose it upon
request, that the disclosure of this information to its competitors would cause
direct and substantial harm by providing a competitive advantage to its
competitors, and that such disclosure may also damage Teva’s relationship with
its customers”. But for the requirements of the Act, this information
would not have been disclosed outside of Teva’s corporate organization.
[8]
On the
basis of these assertions and the evidence as filed, I am unable to conclude
that this part of Teva’s non-public pricing information should be sealed and
that public access to the Court file should be restricted. It is not clear
from the motion record what this information even is or how its disclosure
could cause Teva harm or create an unfair advantage to its competitors such that
the result, as between pharmaceutical companies or the impact on the
pharmaceutical industry, is not in the public interest. The motion record simply
refers to defined terms without any definition or elaboration that would assist
the Court and the draft order simply makes reference to “those documents” that
were “treated as confidential” by agreement between Teva and Board staff. The
Court cannot, however, merely serve as a rubber stamp to whatever agreements
counsel may enter into regarding confidentiality and the sealing of public
records – an open court process and the public interest can only be curtailed
in clear cases.
[9]
With
respect to the information that was ordered to be kept confidential by the
Board, this information is described as Teva’s proprietary international
pricing information for Copaxone. The confidentiality of this information was
challenged by Board staff, and made the subject of a preliminary hearing and
order of the Board that granted the confidentiality order sought by Teva.
[10]
Upon my
review of the record filed on this motion, what might be regarded as proprietary
at best, is the format of this information and Teva having collected and
organized it. This information, however, is information that is acknowledged to
be public information. Mr. Elberg states in his affidavit that “while this
information may be collected from various places in the public, the disclosure
of Teva’s international pricing information to the public would reduce the
time, effort, and associated expense that its competitors would be required to
expend in order to obtain it, thereby granting them a competitive advantage
that they may not otherwise have.” Mr. Elberg is further advised by Mr.
Congleton that such disclosure may damage Teva’s relationship with its
customers. Mr. Congleton had this to say about this information in the hearing
before the Board:
“I think the reason we would like to have
this kept confidential is while it is public information, it is very rare to
see it compiled in this manner….It is something that our competition would
obviously love to have something compiled like this. It is certainly not to
say they could not generate it. It is certainly not to say that they could not
get access to it, but it would be through a great deal of effort for them as
opposed to if this became public information, they would easily have access to
it and it would give them basically an insight into our broader global
strategic pricing..”
[11]
On cross-examination, Mr.
Congleton agreed that the information in the charts was publicly available, and
that it was most likely that Teva’s competitors already had it.
“I’m not suggesting they would be
surprised. I think what this does right here, because this is our information
and pricing information, it may serve as a validation for the data that they
have sought out. If our competitors in the various countries are looking for
the pricing, we are not going to provide it to them. They would be getting it
from various customers. What I have concern about is that this would validate
their research in the various countries.”
[12]
Finally,
this exchange:
·
Q. those
are publicly available prices, nothing else. Isn’t that right?
·
A. That’s
true.
·
Q. And if
it is publicly available to you, it is publicly available to them.
·
A. That’s
correct.
·
Q. So
there is no reason to believe that every piece of information on this sheet,
Schedules 3 and 4, are not in the hands of your competitors already. Isn’t
that right?
·
A. That
is an assumption that I can’t validate. I don’t know if it is or isn’t.
·
Q. It is
available to them.
·
A. It is
available to them.
[13]
While
the Board ruled that Teva could file this information confidentially, I cannot reach
the same
conclusion. That part of the motion dealing with this category of information
(what was ordered to be confidential by the Board) is dismissed. The
information about international pricing is in the public domain – the fact that
Teva has compiled it or has it organized in a certain way, does not automatically
or necessarily make it confidential – even if it eases the burden on someone
else.
[14]
With
respect to the information that Teva and Board staff treated as confidential, as
noted above, there is insufficient evidence to conclude that “Copaxone’s
Average Transaction Price”, its “Maximum Non-Excessive Price”, and “other
confidential information that Teva was required to provide to Board Staff as
part of its regulatory filing under the Patent Act” should be filed with
this Court on a confidential basis. This lack of adequate evidence leaves me
without the ability to determine whether there is any merit to Teva’s claims
and whether that part of the order sought should be granted. Giving Teva the
benefit of the doubt, this part of the motion is dismissed without prejudice to
a further motion being brought in respect of this category of information.
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