Federal Court of Appeal Decisions

Date: 20070212

Docket: A-1-07

Citation: 2007 FCA 71

CORAM:       LÉTOURNEAU J.A.

                        SEXTON J.A.

                        EVANS J.A.

BETWEEN:

APOTEX INC.

Appellant

and

SANOFI-AVENTIS CANADA INC.,

THE MINISTER OF HEALTH and THE ATTORNEY GENERAL OF CANADA

Respondents

Heard at Toronto, Ontario, on February 12, 2007.

Judgment delivered from the Bench at Toronto, Ontario, on February 12, 2007.

REASONS FOR JUDGMENT OF THE  COURT BY:                                                  SEXTON J.A.

Date: 20070212

Docket: A-1-07

Citation: 2007 FCA 71

CORAM:       LÉTOURNEAU J.A.

                        SEXTON J.A.

                        EVANS J.A.

BETWEEN:

APOTEX INC.

Appellant

and

SANOFI-AVENTIS CANADA INC.,

THE MINISTER OF HEALTH and THE ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on February 12, 2007)

SEXTON J.A.

[1]               The facts on which this application is based are clearly set out in the Reasons of Sharlow J.A. dated January 8, 2007.

[2]               The issue on the underlying application for judicial review is whether the Minister of Health (Minister) was correct in issuing a Notice of Compliance ( NOC) to Apotex for a drug containing the medical ingredient ramipril.  We have been told that the application is scheduled to be heard 3 1/2 weeks from to-day.

[3]               The issue before us is whether the Motions Judge erred in staying the effect of the NOC pending the hearing of the judicial review application.

[4]               The Motions Judge’s decision was that by issuing the NOC, the Minister acted in disrespect for the Court and as a result, the Court, making use of its inherent power to control its own process and to properly administer Justice, could issue a stay.

[5]               The Motions Judge discussed the tripartite test for granting a stay as articulated by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.,[1981] 1 S.C.R. 110 and held that the Appellant for the stay, Sanofi-Aventis Canada Inc. had failed to show it would suffer irreparable harm if a stay were not granted.

[6]               The issue of whether the Minister was entitled to issue an NOC while a prohibition application with respect to the same drug was in progress, is a legal issue.  There is certainly an arguable case that the Minister was legally obliged by the law to issue the NOC if he was of the view that the additional patents added to the Patent List subsequent to the NOA initially served by Apotex, were not relevant to the NOA.  This would be the situation where the NOC Regulations could be said not to apply because Apotex could not be said to be a “second person”.  This legal issue is to be decided in the judicial review.

[7]               If the Minister was obliged by law to make a decision as to whether or not to issue the NOC, as is arguably the case, then if the Minister does so, he cannot be said to be acting in disrespect of the Court.  It should be remembered that the alleged disrespect is not in relation to an Order of the Court but rather in relation to a legislative stay.  If the Minister was wrong, his error would be one of statutory interpretation, not an act of disrespect to the Court.

[8]               The effect of the finding of the Motions Judge is that the Minister was acting improperly in issuing the NOC.  He has thus usurped the role of the Judge who will hear the judicial review application by making the finding that Judge will have to make.

[9]               We are of the view therefore that the Motions Judge was not entitled to issue a stay on the basis only, that the Ministry had improperly issued the NOC in the situation where the Ministry arguably had the legal obligation to do so.

[10]           We are of the view that, because the Motions Judge found that Sanofi-Aventis Canada Inc. had failed to show irreparable harm, there was no other basis on which a stay could have been granted.

[11]           We are therefore of the view that the motion Judge erred in issuing the stay.

[12]           The Appeal will be allowed.  The Stay Order will be set aside and the motion of the Respondent Sanofi-Aventis Canada Inc for a stay of the operation of the NOC will be dismissed.

[13]           The Appellant shall have its costs both in this Court and the Court below.

“J. Edgar Sexton”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-1-07

(APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN, FEDERAL COURT, DATED DECEMBER 29, 2006, T-2196-06)

STYLE OF CAUSE:                          APOTEX INC. v. SANOFI-AVENTIS CANADA

                                                              INC., THE MINISTER OF HEALTH and THE

                                                              ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                   TORONTO, ONTARIO

DATE OF HEARING:                     FEBRUARY 12, 2007

REASONS FOR JUDGMENT

OF THE COURT BY:                      (LÉTOURNEAU, SEXTON, EVANS JJ.A.)

DELIVERED FROM THE

BENCH BY:                                     SEXTON, J.A. 

DATED:                                            FEBRUARY 12, 2007 

APPEARANCES:

SOLICITORS OF RECORD: