Docket: T-1440-14
Citation:
2016 FC 970
Ottawa, Ontario, August 25, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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BAYER INC. and
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BAYER
INTELLECTUAL PROPERTY GmbH
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Applicants
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and
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FRESENIUS KABI
CANADA LTD. and
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THE MINISTER OF
HEALTH
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Respondents
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ORDER AND REASONS
[1]
This is a motion by the Respondent Fresenius
Kabi Canada Ltd. [Fresenius] that I reconsider my Judgment dated May 27, 2016,
in which the Court issued a prohibition order at the request of Bayer Inc. and
Bayer Intellectual Property GmbH [Bayer] in respect of a Notice of Allegation
[NOA] served by Fresenius concerning Canadian Patent No. 2,192,418 [the 418
Patent].
[2]
The Court, in issuing prohibition, stated at
para 7:
[7] .…The determinative issue is the
sufficiency of the NOA; I have found the NOA defective, because it does not
contain the “detailed statement of legal and factual basis” for the alleged
non-infringement which is required by law, namely subparagraph 5(3)(b)(ii) of
the PM (NOC) Regulations. Had I not found the NOA defective, I would have
dismissed this application because Bayer failed to establish on a balance of
probabilities that the allegations of non-infringement are not justified.
[3]
In summary, Fresenius seeks reconsideration
because it alleges that the remedy of a prohibition order is inconsistent with
the Reasons, and the Reasons overlook specific concessions made by Bayer in its
argument. Fresenius says the Court found the NOA was insufficient only as it
related to the allegation of non-infringement by importation, and granted a
prohibition order, adding that such remedy is inconsistent with the Court’s
finding that the allegation of simple non-infringement was “the essence of Fresenius’ allegation” in the NOA and
was justified. Fresenius concludes that the case presents the type of
inconsistency or oversight that the Court is empowered to correct under Rule
397 of the Federal Courts Rules, SOR/98-106. Fresenius requests that the
Court exercise that power, issue the order that should have been made, and dismiss
this application.
[4]
Fresenius says that its motion does not seek to
disturb the substance of the Reasons given by the Court, and asks that changes
be made such that Bayer’s prohibition application, instead of being granted, is
dismissed. It also asks that the cost award be reversed such that costs are
awarded to Fresenius instead of Bayer as in the existing decision.
[5]
Bayer, on the other hand, says that Fresenius
impermissibly asks the Court to re-write its Reasons and reverse its Judgment.
Bayer says that Reasons cannot be re-written and that this Judgment cannot be
reversed on a motion for reconsideration. Moreover, Bayer says that the
Judgment was supported by detailed Reasons which accord fully with the
Judgment. Bayer says no matter was overlooked or accidentally omitted. As a
result, Bayer says reconsideration pursuant to Rule 397(1) is not available.
[6]
Under Rule 397(1), the Federal Court may correct
the terms of an order (including a judgment) only if one of the two following
circumstances are satisfied:
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.
[7]
In my respectful opinion, Fresenius’ request
that the Court reverse its Judgment by supplementing, modifying or replacing
its words is beyond the limited relief available under Rule 397 because the
judgment accords with the reasons, and did not overlook or accidentally omit a
matter. Rule 397(1) is therefore not available.
[8]
In its Reasons of May 27, 2016, the Court held
that Fresenius’ NOA was defective because it did not contain the “detailed statement of legal and factual basis” for
the alleged non-infringement which is required by law, namely subparagraph
5(3)(b)(ii) of the PM (NOC) Regulations. That defect was fatal to
Frersenius’ case and remains so notwithstanding its motion to reconsider. I was
pointed to no law at the hearing, nor in this motion to reconsider, suggesting
that a NOA may be saved notwithstanding such fatal defect. The finding that Fresenius’
NOA was defective, as stated in the Court’s Reasons at para 76, “… disposes of this application; the Minister of Health may
not issue a NOC where an applicant … has failed to comply with its duty to
file the detailed statement required under subparagraph 5(3)(b)(ii) of the PM
(NOC) Regulations. Therefore, Bayer is entitled to the prohibition order it seeks.”
[9]
With respect, this motion is in effect a motion
to reargue the application. However, that is not the purpose of a motion to
reconsider. The Reasons and the Judgment are consistent, and I am unable to
identify any slip in drawing it up. In particular, I am satisfied now, as I was
then, that the Judgment issued expresses the intention of the Court. If it is
in error, it is for the Federal Court of Appeal to make such determination on
an appeal.
[10]
Fresenius argues in its correspondence that
reconsideration is an appropriate, just, and most expeditious avenue for
reconsideration of this Court’s Judgment. While a motion to reconsider may be
more expeditions than an appeal as a means to have a judgment or order set
aside, I am unable to agree, nor did I hear it argued although it is the result
of such logic, that Rule 397 is a substitute for the appeal rights created by
the Federal Courts Act, R.S.C., 1985, c. F-7.
[11]
This Court is functus officio other than
as allowed under Rule 397. It is well accepted, and indeed the parties agree
that Rule 397 may not be used to reverse that which has already been ordered; Yukon
Forest Corporation v. Canada, 2006 FCA 34 at paras. 39 and 40; Taker v
Attorney General of Canada, 2012 FCA 83 at paras 4 and 5.
[12]
In my respectful view, the relief sought by
Fresenius may only be granted by the Federal Court of Appeal. In this
connection, I note that the motion to reconsider was filed on June 3, 2016.
Subsequently, Fresenius did in fact file a Notice of Appeal to the Federal
Court of Appeal on June 24, 2016. Fresenius sent a letter to the Court stating
that in the event of a final determination of its motion to reconsider in Fresenius’
favour, its appeal will become moot and Fresenius will take the necessary steps
to discontinue it. Fresenius is not in any way prejudiced in its motion to
reconsider by subsequently instituting an appeal; I mention the appeal because
that is the proper course for Fresenius to pursue instead of this motion to
reconsider.
[13]
It is inappropriate for this Court to go further
in these reasons for dismissing this motion. To do so would directly trespass
on the jurisdiction of the Federal Court of Appeal to correct errors, should it
find them in this matter. It is inappropriate for me to sit on review of my own
Reasons; to do so would permit a disguised method of appeal contrary to the
scheme of the Rules and the Federal Court Act: Tucker v Canada,
2001 FCT 334 at paras. 7 – 12. If the Court is wrong in this matter it is for
the appeal to decide. I also note that a “matter”
for the purposes of Rule 397(1)(b) has been found to be an element of the
relief sought, as opposed to an argument raised before the Court; Lee v
Canada (Minister of Citizenship and Immigration), 2003 FC 867 at paras 3 to
4, and 7.
[14]
Therefore, the motion for reconsideration is
dismissed.
[15]
Costs should follow the event. Therefore, Bayer
will have its costs of this motion payable by Fresenius. The parties may seek
further direction regarding costs by written submissions filed within 15 days
of the date of this Judgment if necessary.
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