Date: 20030326
Docket: A-636-02
Neutral citation: 2003 FCA 166
CORAM: ROTHSTEIN J.A.
NADON J.A.
MALONE J.A.
BETWEEN:
ASTRAZENECA AB and
ASTRAZENECA CANADA INC.
Appellants
(Respondents)
and
APOTEX INC.
Respondent
(Appellant)
and
THE MINISTER OF HEALTH
Respondent
(Respondent)
Heard at Ottawa, Ontario, on March 26, 2003.
Judgment delivered from the Bench at Ottawa, Ontario, on March 26, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A.
Date: 20030326
Docket: A-636-02
Neutral citation: 2003 FCA 166
CORAM: ROTHSTEIN J.A.
NADON J.A.
MALONE J.A.
BETWEEN:
ASTRAZENECA AB and
ASTRAZENECA CANADA INC.
Appellants
(Respondents)
and
APOTEX INC.
Respondent
(Appellant)
and
THE MINISTER OF HEALTH
Respondent
(Respondent)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario,
on March 26, 2003.
NADON J.A.
[1] We have not been persuaded that the motion judge made any error when he concluded that the identity of the drug, to which the respondent Apotex Inc. compared its drug, pursuant to section 5(1) of the Patent (Notice of Compliance) Regulations, SOR/93-133 (the "Regulations"), does not give rise to any factual issue.
[2] We are satisfied that the motion judge, notwithstanding the concerns raised by Ms. Kang, counsel for the appellants, did not determine any of the issues that arise under section 5(1) of the Regulations and which are to be determined at the hearing of the respondent's judicial review application.
[3] As the motion judge's determination is the only one which the appellants are challenging before us, we are all agreed that this appeal must be dismissed with costs, which we fix, by consent of the parties, at $2000.
"M. Nadon"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-636-02
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED NOVEMBER 6, 2002, TRIAL DIVISION FILE NO. T-812-02
STYLE OF CAUSE: ASTRAZENECA AB ET AL. v. APOTEX INC. ET AL.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 26, 2003
REASONS FOR JUDGMENT OF THE COURT (Rothstein, Nadon, Malone JJ.A.)
RENDERED FROM THE BENCH BY: Nadon, J.A.
APPEARANCES:
Ms. Yoon Kang for the Appellants
Ms. Julie Perrin for the Respondent, Apotex Inc.
SOLICITORS OF RECORD:
Smart & Biggar for the Appellants
Toronto, Ontario
Goodmans LLP for the Respondent, Apotex Inc.
Toronto, Ontario
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