Date:
20071127
Docket: A-97-07
Citation: 2007 FCA 375
CORAM: NOËL J.A.
SEXTON J.A.
TRUDEL J.A.
BETWEEN:
THE MINISTER OF HEALTH and
THE ATTORNEY GENERAL OF CANADA
Appellants
and
CANADIAN
GENERIC PHARMACEUTICAL ASSOCIATION
Respondent
Heard at Ottawa,
Ontario, on November 14,
2007.
Judgment delivered at Ottawa, Ontario, on November 27,
2007.
REASONS FOR JUDGMENT BY: SEXTON
J.A.
CONCURRED
IN BY: NOËL
J.A.
TRUDEL
J.A.
Date:
20071127
Docket: A-97-07
Citation: 2007
FCA 375
CORAM: NOËL
J.A.
SEXTON
J.A.
TRUDEL
J.A.
BETWEEN:
THE MINISTER OF HEALTH and
THE ATTORNEY GENERAL OF CANADA
Appellants
and
CANADIAN
GENERIC PHARMACEUTICAL ASSOCIATION
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1]
This
is an appeal from the Order of Harrington J. (the “Motions Judge”), which
dismissed the appellants’ motion to strike out the Canadian Generic
Pharmaceutical Association’s (the “respondent”) Notice of Application without
prejudice to the appellants taking the same position when the application for
judicial review is heard on the merits.
[2]
The
respondent is seeking a judicial determination of the vires of a
recently enacted amendment to section C.08.044.1 of the Food and Drug
Regulations C.R.C., c. 870 by the Regulations Amending the Food and Drug
Regulations (New Data Protection Regulations) (the “New Data Protection
Regulations”). This appeal was heard concurrently with the appeal of the
decision of Shore J. in Apotex v. Canada (Governor in
Council)
2007 FC 232. In that case, this Court allowed the appeal and held that the question
of Apotex’s standing should be allowed to be heard along with the merits of
that case. For the reasons that follow, I would dismiss this appeal.
[3]
The
respondent is an industry association representing most Canadian generic drug
manufacturers. Its drugs are approved by comparison with a drug which is
already on the market, subject to patent rights as set out in the Patented
Medicine (Notice of Compliance) Regulations.
[4]
The decision to grant or refuse a motion to
strike is a discretionary one. When the lower court judge has made a
discretionary decision, it will usually be afforded deference by the appellate
court. However, the latter will be entitled to substitute the lower court
judge’s discretion for its own if the appellate court clearly determines that
the lower court judge has given insufficient weight to relevant factors or
proceeded on a wrong principle of law: Elders Grain Co. v. Ralph Misener
(The), 2005 FCA 139 at paragraph 13. This Court may also
overturn a discretionary decision of a lower court where it is satisfied that
the judge has seriously
misapprehended the facts, or where an
obvious injustice would otherwise result: Mayne Pharma (Canada) Inc. v.
Aventis Pharma Inc., 2005 FCA 50, 38 C.P.R. (4th) 1 at
paragraph 9.
[5]
The
Motions Judge did not proceed on a wrong principle of law in finding that the
Application should not be struck, as it was not plain and obvious that the
Canadian Generic Pharmaceutical Association did not have public interest
standing. The test for public interest standing, as articulated by the Supreme
Court of Canada in Canadian Council of Churches v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236 at paragraph 37 has three
elements:
·
There
is a serious issue to be tried;
·
The
party has a direct interest or a genuine interest in the matter; and
·
There
is no other reasonable and effective manner in which to bring this issue to the
Court.
No serious argument was made with respect
to the first and second prongs of this test. The Motions Judge adequately
addressed the third prong of this test, and I could find no overriding and
palpable error in his conclusion that it was not plain and obvious that there
was another reasonable and effective manner in which to bring this issue
to the Court. This conclusion is in no way diminished by the result in the
companion case to this appeal, Apotex v. Canada (Governor in Council)
2007 FCA 374, where this Court held that it was not plain and obvious that
Apotex did not have standing to challenge the New Data Protection Regulations.
Since there has been no final ruling on whether Apotex has standing to
contest the vires of the New Data Protection Regulations, it cannot yet
be said that it is plain and obvious that there is another manner in which to
bring this issue to the Court.
[6]
In
light of my conclusion with respect to public interest standing, it is
unnecessary to comment on the Motion Judge’s finding that it was not plain and
obvious that the Respondent was not “directly affected” within the meaning of section
18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7.
[7]
The
Motions Judge also did not err in dismissing the appellants’ motion “without
prejudice” to raising the issue again when the Application is heard on the
merits. While not cited by the Motions Judge, the Supreme Court of Canada noted
in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, 33
D.L.R. (4th) 321 at paragraph 16, that it is a matter of judicial
discretion whether to determine the question of standing with final effect as a
preliminary matter or to reserve it for consideration on the merits. In deciding
that the matter of standing should not be decided now, he noted, at paragraph
25 of his decision that “An application for judicial review is supposed to be
decided in a summary way. The Court discourages interlocutory motions in
applications for judicial review.” I can find no overriding and palpable error
in the Motion Judge’s discretionary decision to reserve the question of
standing for consideration on the merits.
[8]
I
also find that the Motions Judge did not err in allowing the Canadian
Research-Based Pharmaceutical Companies leave to intervene. I would note that this
was not opposed by the Minister of Health, and not raised as a ground of
cross-appeal by the respondent.
[9]
For
the above reasons, I would dismiss the appeal with costs.
"J.
Edgar Sexton"
"I
agree
Marc Noël J.A."
"I
agree
Johanne Trudel J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-97-07
APPEAL FROM A JUDGMENT OR ORDER OF THE
FEDERAL COURT DATED FEBRUARY 9, 2007, DOCKET NO. T-1976-06
STYLE OF CAUSE: THE MINISTER OF HEALTH and THE
ATTORNEY GENERAL OF CANADA v. CANADIAN GENERIC
PHARMACEUTICAL ASSOCIATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 14, 2007
REASONS FOR JUDGMENT BY: Sexton J.A.
CONCURRED IN BY: Noël J.A.
Trudel J.A.
DATED: November 27, 2007
APPEARANCES:
Mr. F.B. Woyiwada
Mr. David Cowie
|
FOR
THE APPELLANTS
|
Mr. Edward Hore
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa,
Ontario
|
FOR
THE APPELLANTS
|
Hazzard & Hore
Toronto, Ontario
|
FOR
THE RESPONDENT
|