Mayne Pharma (Canada) Inc. v. Pfizer Canada Inc., 2007 FCA 1

Date: 20070103

Docket: A-28-06

A-84-06

Citation: 2007 FCA 1

Present:          NADON J.A.

                        SHARLOW J.A.

                        PELLETIER J.A.

A-28-06

BETWEEN:

MAYNE PHARMA (CANADA) INC.

Appellant

and

PFIZER CANADA INC., PHARMACIA ITALIA S.p.A.

and THE MINISTER OF HEALTH

Respondents

A-84-06

BETWEEN:

PFIZER CANADA INC.

and PHARMACIA ITALIA S.p.A.

Appellants

and

THE MINISTER OF HEALTH

and MAYNE PHARMA (CANADA) INC.

Respondents

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on January 3, 2007.

REASONS FOR ORDER BY:                                                                                  SHARLOW J.A.

Date: 20070103

Docket: A-28-06

A-84-06

Citation: 2007 FCA 1

Present:          NADON J.A.

                        SHARLOW J.A.

                        PELLETIER J.A.

A-28-06

BETWEEN:

MAYNE PHARMA (CANADA) INC.

Appellant

and

PFIZER CANADA INC., PHARMACIA ITALIA S.p.A.

and THE MINISTER OF HEALTH

Respondents

A-84-06

BETWEEN:

PFIZER CANADA INC.

and PHARMACIA ITALIA S.p.A.

Appellants

and

THE MINISTER OF HEALTH

and MAYNE PHARMA (CANADA) INC.

Respondents

REASONS FOR ORDER

SHARLOW J.A.

[1]               On December 20, 2005, Hughes J. granted the application of Pfizer Canada Inc. and Pharmacia Italia S.p.A. (Pfizer) under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, for an order prohibiting the Minister of Health from issuing a notice of compliance to Mayne Pharma (Canada) Inc. (Mayne) in respect of its proposed injectable ready-to-use epirubicin hydrochloride solution in a strength of 2 mg/ml until the expiry of Canadian Patent Number 1,291,037 (October 22, 2008) or earlier if the patent is “held to be invalid by an unappealable judgment of a competent Canadian court”. Mayne appealed that judgment (A-28-06). Pfizer appealed the subsequent judgment relating to costs (A-84-06).

[2]               On September 26, 2006, both appeals were the subject of a notice of status review. In response, the appellants in both cases filed a document entitled “Notice of Discontinuance”, with a cover letter indicating that both intend to discontinue their appeals, and that they had each consented to the discontinuance of the appeal of the other without costs.

[3]               Both appellants had asked for the consent of the Minister, but had not yet had a response. Counsel for the Minister has written to the Court to say that the Minister opposes the appeals being discontinued because the appellants have not informed the Minister of the basis for the discontinuance. The letter does not mention costs.

[4]               Rule 165 of the Federal Courts Rules, SOR/98-106, permits an appellant to discontinue an appeal. An appellant who wishes to discontinue an appeal owes no explanation to the Court, or to the respondent. However, an appellant may seek the respondent’s consent if the discontinuance is intended to be part of a settlement agreement or an agreement relating to costs, or both. It is not clear why the appellants in this case were seeking the consent of the Minister to the discontinuance. However, the appellants are not obliged to disclose that information to the Court.

[5]               Given that these appeals are the subject of a status review, and that the appellants have indicated their intention not to continue the appeals, I would dismiss both appeals without requiring further documentation from any of the parties.

[6]               This will not preclude the Minister from seeking costs by filing a motion under Rule 402.

“K. Sharlow”

“I agree

            M. Nadon J.A.”

“I agree

            J.D. Denis Pelletier J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-28-06

                                                                                                A-84-06

STYLE OF CAUSE:                                                                                                  A-28-06

                                                                        MAYNE PHARMA (CANADA) INC.

                                                                        and

                                                                        PFIZER CANADA INC., PHARMACIA ITALIA                                                              S.p.A. and THE MINISTER OF HEALTH

                                                                                                                                    A-84-06

                                                                        PFIZER CANADA INC. and PHARMACIA                                                                                  ITALIA S.p.A.

                                                                        and

                                                                        THE MINISTER OF HEALTH and MAYNE                                                                                 PHARMA (CANADA) INC.

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                             Sharlow J.A.

DATED:                                                                                 January 3, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: