Novartis Pharmaceuticals Canada Inc. v. Apotex Inc., 2001 FCT 1179

Date: 20011101

Docket: T-1337-99

                                                                         Neutral Citation: 2001 FCT 1179

PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL A. KELEN

BETWEEN:                                                                                                           

NOVARTIS PHARMACEUTICALS CANADA INC. and

NOVARTIS AG

Applicants

- and -

APOTEX INC. and

THE MINISTER OF HEALTH

Respondents

                                       REASONS FOR ORDER AND ORDER

KELEN J.

[1]         This is a motion by Apotex Inc. for an order dismissing this proceeding, or in the alternative, requiring the applicants to file a Notice of Discontinuance.

[2]         This application had been stayed by Order of Madam Prothonotary Aronovitch dated June 7^th, 2000 pending the resolution of Court File T-1266-99. This stay had been obtained on consent, based in part, on the affidavit of Nancy Gallinger which set out the the parties' reasons for seeking the stay. The affidavit reads in part:

"[...] the parties agree that if Apotex' allegation of invalidity with respect to the ‘150 patent in the seventh Notice of Allegation is found to be justified in Court File T-1266-99, the proceedings in Court File T-1337-99 will become mute and therefore be discontinued on consent without costs and Apotex will be permitted to come to market with the formulation that was disclosed in this proceeding."

[3]         While this affidavit suggests an agreement between the parties, the correspondence and additional affidavit evidence demonstrate that the parties did not have a clear agreement.

[4]         On October 18, 2001 Mr. Justice Blais dismissed the application in Court File T-1266-99. This Order has been appealed to the Federal Court of Appeal.

[5]         I am satisfied from reviewing the correspondence and the affidavit evidence that there is no clear agreement between the parties regarding when this matter would be discontinued. Apotex submits that the agreement was to discontinue this matter upon resolution of Court File T-1266-99 in Apotex' favour at the Trial Division. The applicants submit that the said agreement takes effect after the disposition of any appeals or the expiration of any appeal periods.

[6]         Since the purpose of this motion is to give effect to the parties' agreement which resulted in the stay granted by Madam Prothonotary Aronovitch, and since the parties' agreement is unclear, this Court cannot amend or interpret the agreement to make it clear. In fact, the evidence on this motion demonstrates that the parties had no meeting of minds.

                                                                      ORDER

[7]         Accordingly, this application is dismissed with costs.

                    "Michael A. Kelen" _________________________

                                                                                                                                                  Judge                    

OTTAWA, ONTARIO

NOVEMBER 1, 2001