Date: 20010406
Docket: A-82-01
Neutral citation: 2001 FCA 108
CORAM: RICHARD C.J.
EVANS J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
(Proposed Intervenor)
and
ELI LILLY CANADA INC.
Respondent
(Applicant)
and
THE MINISTER OF HEALTH
Respondent
(Respondent)
Heard at Ottawa, Ontario, on April 6, 2001.
Judgment delivered from the Bench at Ottawa, Ontario, on April 6, 2001.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
Date: 20010406
Docket: A-82-01
Neutral citation: 2001 FCA 108
CORAM: RICHARD C.J.
EVANS J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
(Proposed Intervenor)
and
ELI LILLY CANADA INC.
Respondent
(Applicant)
and
THE MINISTER OF HEALTH
Respondent
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on April 6, 2001.)
RICHARD C.J.
[1] On July 10, 2000, Eli Lilly Canada Inc. (Lilly) commenced an application for judicial review of the June 8, 2000 decision of the Minister of Health. This decision removed Canadian Letters Patent 1,249,969 (the ‘969 patent) from the Patent Register in respect of Lilly's medicine ceftazidime pursuant to the Patented Medicines (Notice of Compliance) Regulations (Regulations) SOR/93-133.
[2] On February 12, 2001, Mr. Justice Blais, 2001 FCT 56, dismissed a motion brought by Apotex Inc. (Apotex) to intervene in the aforementioned judicial review application.
[3] The proposed intervener sought status at the stage in the proceedings where the record was complete and a date for the hearing fixed.
[4] Intervention is permitted under Rule 109 of the Federal Court Rules, 1998:
| 109. (1) Leave to intervene - The Court may, on motion, grant leave to any person to intervene in a proceeding.
(2) Contents of notice of motion - Notice of a motion under subsection (1) shall
(a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and
(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.
(3) Directions - In granting a motion under subsection (1), the Court shall give directions regarding
(a) the service of documents; and
(b) the role of the intervener, including costs, rights of appeal and any other matter relating to the procedure to be followed by the intervener.
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109. (1) Autorisation d'intervenir - La Cour peut, sur requête, autoriser toute personne à intervenir dans une instance.
(2) Avis de requête - L'avis d'une requête présentée pour obtenir l'autorisation d'intervenir:
a) précise les nom et adresse de la personne qui désire intervenir et ceux de son avocat, le cas échént;
b) explique de quelle manière la personne désire participer à l'instance et en quoi sa participation aidera à la prise d'une décision sur toute question de fait et de droit se rapportant à l'instance.
(3) Directives de la Cour - La Cour assortit l'autorisation d'intervenir de directives concernant:
a) la signification de documents;
b) le rôle de l'intervenant, notamment en ce qui concerne les dépens, les droits d'appel et toute autre question relative à la procédure à suivre.
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[5] Apotex requests that the Order of Mr. Justice Blais be set aside and replaced with an Order granting Apotex intervener status with the right to file a Memorandum of Fact and Law and to make submissions at the hearing of the within proceeding.
[6] In order to succeed, the appellant must demonstrate that the Motions Judge misapprehended the facts or committed an error of principle in denying the intervention. An Appellate Court will not disturb a discretionary order of a Motions Judge simply because it might have exercised its discretion differently: see C.U.P.E. v. Canadian Airlines International Limited (C.U.P.E.) (15 February 2000) A-346-99 (F.C.A.) at paragraph 6.
[7] The Motions Judge provided reasons for dismissing Apotex's motion. When his Reasons are considered in their entirety, there is no indication that he failed to have regard for the relevant considerations.
[8] In particular, the Motions Judge considered Rule 109 of the Federal Court Rules, 1998 and specifically paragraph 2 thereof which required Apotex to show that their proposed intervention A... will assist the determination of a factual or legal issue related to the proceeding@.
[9] The Motions Judge concluded at paragraph 39:
The proposed intervener has failed to show in its evidence that it has an interest in the outcome of the proceeding and that its rights would be seriously affected by the outcome of the litigation. It is my conclusion that the proposed intervener has an interest only in relation to the interpretation of the jurisprudence. This is not sufficient for it to be granted intervener status.
[10] At paragraph 8 of C.U.P.E., the Court of Appeal set out the factors relevant to a motion to intervene. They include:
1) Is the proposed intervener directly affected by the outcome?
2) Does there exist a justiciable issue and a veritable public interest?
3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?
4) Is the position of the proposed intervener adequately defended by one of the parties to the case?
5) Are the interests of justice better served by the intervention of the proposed third party?
6) Can the Court hear and decide the proceeding on its merits without the proposed intervener?
[11] As noted by Sexton J.A. in Canadian Taxpayers Federation v. Charles John Gordon Benoit et al., 2001 FCA 71, at paragraph 16, a Motions Judge ought to consider these factors when determining intervener status under Rule 109.
[12] Considering these factors in the context of this case, we are not persuaded that the Motion Judge's decision should be disturbed.
[13] Accordingly, this appeal will be dismissed with costs.
"J. Richard"
Chief Justice
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