A-841-95
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
McDONALD J.A.
BETWEEN:
APOTEX INC.
Appellant
(Respondent)
AND:
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootschap
Respondents
(Applicants)
AND:
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondent
(Respondent)
Heard at Ottawa (Ontario) on Tuesday, February 11, 1997.
Judgment delivered from the Bench on February 11, 1997.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY J.A.
A-841-95
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
McDONALD J.A.
BETWEEN:
APOTEX INC.
Appellant
(Respondent)
AND:
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootschap
Respondents
(Applicants)
AND:
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondent
(Respondent)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa (Ontario)
on Tuesday, February 11, 1997.)
DÉCARY J.A.
The learned Motions Judge, Gibson J., in rendering the impugned decision, relied essentially on the reasons given by MacKay J. in Janssen Pharmaceutica Inc. et al v. Novopharm Limited et al (T-2021-93, October 16, 1995, unreported). At issue in both these cases was the construction of compulsory licences whose relevant provisions are remarkably similar.
Unfortunately for the present appellant, Mr. Justice MacKay's reasons were confirmed and adopted by this Court on September 17, 1996 (Novopharm Limited v. Janssen Pharmaceutica Inc. et al, A-693-95, unreported) ("Novopharm"). The Court's decision in that case is obviously not res judicata and while it is not binding on us per se, reasons of judicial comity or stare decisis invite us to follow it unless material facts are shown to be distinguishable or absent some demonstration that the previous decision of this Court was manifestly wrong for having overlooked a statutory provision or a case that ought to have been applied or followed1.
The appellant and the intervenor Brantford Chemical Inc. ("the intervenor") have argued that even though the patent at issue is the same in both cases and even though the compulsory licences are phrased in both cases in the very same wording, the applications for the issuance of these licences did not use the same language and we should therefore be at liberty to reach a different conclusion from that reached in the previous decision of this Court.
We do not agree. Where the Commissioner of Patents ("the Commissioner") in issuing two compulsory licences within seven days from each other with respect to the same patent uses the very same words and where this Court has already interpreted one of the compulsory licences thus issued, the Court can simply not contemplate the possibility that the Commissioner may have intended to allow in the case presently before the Court something different from what he has allowed in the case already determined by this Court.
On the other hand, we have not been persuaded that the decision of this Court in Novopharm, supra, was manifestly wrong in the sense that it was made per incuriam.
The appellant not having discharged the burden of demonstrating why we should not follow the previous decision of this Court, the appeal will be dismissed with costs payable by the appellant to the respondents. There shall be no costs for or against the intervenor.
We wish to add that the Court's time and resources would be better used if counsel arranged for joint hearing of applications, actions or appeals dealing with some common question of law or fact instead of each insisting in having his or her own separate day in court. Counsel' failure to do so impedes the development of a coherent case law and obliges the Court of Appeal to apply, sometimes reluctantly, the principle of stare decisis.
"Robert Décary"
J.A.
FEDERAL COURT OF APPEAL
A-841-95
BETWEEN:
APOTEX INC.
Appellant
(Respondent)
AND:
JANSSEN PHARMACEUTICA INC. and
JANSSEN PHARMACEUTICA naamloze vennootschap
Respondents
(Applicants)
AND:
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondent
(Respondent)
REASONS FOR JUDGMENT OF THE COURT
__________________
1 See: Eli Lilly and Co. v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 377 at 380, Stone J.A., leave to appeal to Supreme Court of Canada granted February 6, 1997, CSC 25402.
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