Date: 20070724
Docket: A-262-07
Citation: 2007-FCA-261
CORAM: NADON
J.A.
EVANS
J.A.
PELLETIER
J.A.
BETWEEN:
RATIOPHARM INC.
Appellant
and
PFIZER CANADA INC. and PFIZER
INC. and THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER
EVANS J.A.
[1]
This is a
motion to be disposed of in writing pursuant to rule 369 of the Federal
Courts Rules brought by the respondents, Pfizer Canada Inc. and Pfizer Inc.
(“Pfizer”), to quash an appeal by ratiopharm inc. against an order of Justice
Barnes of the Federal Court, dated April 26, 2007. The Judge granted a motion
by ratiopharm to strike Pfizer’s application for an order of prohibition.
[2]
Pfizer
says that, since the Judge granted ratiopharm the very relief which it had
requested, this Court has no jurisdiction to hear the appeal: ratiopharm is
appealing against the Judge’s reasons, not his order. Paragraph 52(a) of
the Federal Courts Act, R.S. C. 1985, c. F-7, enables the Court to quash
a proceeding in cases over which it has no jurisdiction. In the alternative, Pfizer
submits that the appeal should be quashed in the exercise of the Court’s
inherent jurisdiction to prevent abuses of its process.
[3]
Ratiopharm’s
appeal arises from Pfizer’s application to the Federal Court under subsection
6(1) of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133
(“PM(NOC) Regulations”) for an order prohibiting the Minister of
Health from issuing a notice of compliance to ratiopharm in respect of its
generic version of Pfizer’s drug, NORVASC®, until the expiry of Canadian Patent
2,355, 493 (“493 Patent”).
[4]
Ratiopharm
brought a motion to strike the application on the ground that the 493 Patent
was not eligible to be listed on the patent register and that Pfizer’s application
was frivolous, vexatious, and an abuse of process.
[5]
Justice
Barnes granted ratiopharm’s motion and struck Pfizer’s application as it
related to the 493 Patent, on the ground that the 493 Patent was ineligible to
be listed on the patent register. However, he rejected ratiopharm’s contention
that the application should also be struck as frivolous, vexatious, and an
abuse of process.
[6]
It is
trite law that, having been awarded all the relief that it requested, a party may
not appeal because the Judge did not accept all the grounds relied on to obtain
relief. Such an appeal would be against the reasons of the Judge and not the
order; subsection 27(1) of the Federal Courts Act provides for appeals
to this Court against a “judgment” of the Federal Court, not against its
reasons for judgment. Whether a determination by this Court that Justice Barnes
erred in rejecting one of ratiopharm’s arguments might assist ratiopharm, as it
alleges, in other proceedings cannot confer jurisdiction on the Court and is
therefore irrelevant.
[7]
Ratiopharm
advances two arguments in support of its contention that this appeal is within
the jurisdiction of the Court.
[8]
First, it
says that Pfizer’s motion to dismiss is premature because it (ratiopharm) has a
motion pending before Justice Barnes for a reconsideration of his order. The
motion requests that he amend it by dismissing ratiopharm’s motion to strike under
paragraph 6(5)(b) of the PM(NOC) Regulations (“frivolous,
vexatious and an abuse of process”), and allowing it under paragraph 6(5)(a)
(ineligibility of the patent to be listed on the patent register).
[9]
I do not
agree. Even if the order were to be amended by the Judge as requested, the
result would be the same: ratiopharm’s motion would be granted and Pfizer’s
application struck, the very relief requested by ratiopharm. An incorporation into
the order of the grounds on which the order was made is merely a matter of
form, not substance.
[10]
Second,
ratiopharm relies upon the decision of this Court in Tommy Hilfiger
Licensing Inc. v. International Clothiers Inc. 2004 FCA 252, 32 C.P.R. (4th)
289, in which the plaintiff appealed, despite having been largely successful at
trial. However, Tommy Hilfiger is distinguishable from the present case,
on the ground that the Trial Judge had not awarded the plaintiff/appellant all
the relief that it had sought. The Trial Judge had dismissed the plaintiff’s claim
that the defendant had infringed the plaintiff’s trade mark, and had refused an
order that the defendant deliver up or destroy wares, the use of which would
violate the plaintiff’s rights.
[11]
This Court
allowed the plaintiff’s appeal on the ground that the defendant had infringed
the plaintiff’s trade mark, and exercised its discretion to award the remedy (a
declaration of infringement) which the Trial Judge should have awarded. In any
event, the jurisdiction point was not argued because no-one appeared on the
appeal for the respondent. Hence, Tommy Hilfiger does not support
ratiopharm’s contention that its appeal is within the Court’s jurisdiction.
[12]
Having
concluded that ratiopharm’s appeal is not against a judgment of the Federal
Court, but against the reasons for judgment, and is thus not within this
Court’s jurisdiction under subsection 27(1), I need not consider Pfizer’s
alternative argument that ratiopharm’s appeal should be quashed because it is
frivolous, vexatious and an abuse of process.
[13]
For these
reasons, I would grant Pfizer’s motion to quash and dismiss ratiopharm’s
appeal, with costs.
“John
M. Evans”
“I
agree” M.Nadon
“I
agree” J.D. Denis Pelletier
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