Apotex Inc. v. Canada (Minister of Health), 2002 FCT 608

                                                                                                                                            Date: 20020528

                                                                                                                                       Docket: T-2288-01

                                                                                                                Neutral citation: 2002 FCT 608

BETWEEN:

                                                                       APOTEX INC.

Applicant

-and-

THE MINISTER OF HEALTH and

GLAXOSMITHKLINE INC.

Respondents

                                                            REASONS FOR ORDER

PINARD J.

[1]                 There is no provision in the Federal Court Rules for striking or dismissing judicial review applications in a summary manner. In Pharmacia Inc. v. Minister of National Health and Welfare(1994), 58 C.P.R. (3d) 209 at 215, the Federal Court of Appeal discussed this matter as follows:

The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that the parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. Even though it is important both to the parties and the court that futile claims or defences not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading under Rule 419. ... The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the court. Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike.

                                                                                                                                 (my emphasis)

[2]                 In the impugned decision, the Prothonotary wrote the following:

I have considered GlaxoSmithKline's (GSK) and the Crown respondent's contention that Apotex's request for mandamus, and declaratory relief cannot possibly succeed as there is no mandatory duty on the Minister to add or delete patents under subsection 3(b) of the NOC Regulations (Apotex Inc. v. Canada (2000) 3 C.P.R. (4^th) 1 (F.C.A.)).

It is nevertheless clear that mandamus, injunctive or declaratory relief may be available in circumstances when the Minister unlawfully exercises or declines to exercise his discretion to refuse to add or delete patents from the Register (Apotex, supra per Rothstein, J.) (see also Mount Sinai Hospital Centre v. Quebec Minister of Health and Social Services (2001), 200 D.L.R. (4^th) 193 at 205 (S.C.C.) to the effect that the exercise of administrative discretion is not unfettered and the list of limitations on the exercise of such discretion is not exhaustive).

The availability of mandamus and declaratory relief, in such cases is to the point here, as it is alleged in this instance that the Minister's refusal to delist the ineligible patents was influenced by extraneous considerations.

In that regard, I do not accept GSK's submission, that the evidentiary record is irrelevant to this proceeding. While the Court of Appeal, in Apotex, supra, arrived at its conclusion in part due to the Court's consideration of the comprehensiveness of the scheme set out in the Regulations, it does not establish that the case was decided solely on that basis. Rothstein, J. makes explicit that it was in fact decided on two bases as follows:

"There are two reasons for our coming to this conclusion. The first is based on the evidence and the second relates to the scheme of the Regulations."

I do not accept the contention that the two reasons are to be read disjunctively, that each reason in and of itself could be said to justify the Court's decision such that one can refer to the comprehensiveness of the scheme of theRegulations without reference to the evidentiary record as was put forth by the parties and considered by the Court in that case. That in itself precludes summary dismissal of the application, as I take it that the evidenciary record accompanying Apotex's underlying application needs be assessed by the Court on the merits to determine whether mandamus will issue and declaratory relief may be granted.

[3]                 It is agreed that the fate of this motion hinges upon the interpretation and the application to the within proceeding of the decision made by the Federal Court of Appeal in Apotex Inc. v. Canada, referred to by the Prothonotary in the above abstract of her decision.

[4]                 Although I have some doubts as to the correctness of Apotex Inc's proposed interpretation of that decision, namely that the two reasons given by Rothstein, J. in support of his conclusion ought to be read disjunctively, I do not consider such an interpretation to be so untenable as to warrant the summary dismissal of a proceeding which is itself intended to be summary in nature. Thus, GSK has failed to convince me that the within application for judicial review is "so clearly improper as to be bereft of any possibility of success" or that the application is doomed due to an incurable defect (see Pharmacia Inc., supra).

[5]                 Consequently, the motion is dismissed, with costs.

                                                                                            "Yvon Pinard"                         

J.F.C.C.           

Toronto, Ontario

May 28, 2002             

FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

COURT NO:                           T-2288-01

STYLE OF CAUSE:                          APOTEX INC.

Applicant

-and-

THE MINISTER OF HEALTH and

GLAXOSMITHKLINE INC.

Respondents

DATE OF HEARING:                     MONDAY, MAY 27, 2002

PLACE OF HEARING:            TORONTO, ONTARIO

REASONS FOR ORDER BY:              PINARD J.

DATED:                        TUESDAY, MAY 28, 2002

APPEARANCES BY:                 Mr. Andrew R. Brodkin

For the Applicant (Apotex Inc.)

No appearance

For the Respondent (The Minister of Health)

Mr. James Mills

Ms. Carina De Pellegrin

For the Respondent (GlaxoSmithKline Inc.)

SOLICITORS OF RECORD:                 GOODMANS LLP

Barristers & Solicitors

Suite 2400, Box 24

250 Yonge Street

Toronto, Ontario

M5B 2M6

For the Applicant (Apotex Inc.)

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent (The Minister of Health)

GOWLING LAFLEUR HENDERSON LLP

160 Elgin Street

Suite 2600

Ottawa, Ontario

K1P 1C3

For the Respondent (GlaxoSmithKline Inc.)

FEDERAL COURT OF CANADA

     Date: 20020528

    Docket: T-2288-01

BETWEEN:

APOTEX INC.

Applicant

-and-

THE MINISTER OF HEALTH and

GLAXOSMITHKLINE INC.

Respondents

REASONS FOR ORDER