Date: 19980421
Docket: T-308-98
BETWEEN:
HOFFMANN-LA ROCHE LIMITED and
SYNTEX PHARMACEUTICALS
INTERNATIONAL LIMITED
Applicants
- and -
THE MINISTER OF NATIONAL
HEALTH AND WELFARE and
NOVOPHARM LIMITED
Respondents
REASONS FOR ORDER
(Delivered from the Bench, at Toronto, Ontario
Monday, April 20, 1998)
HUGESSEN, J.:
[1] These two applications for judicial review seek respectively to set aside and to prohibit the issuance of notices of compliance by the respondent Minister to the respondent Novopharm. In each case an application for prohibition under section 6 of the Patented Medicines (Notice of Compliance) Regulations, was dismissed by judgment of the Associate Chief Justice delivered January 27, 19981.
[2] The basis of the present application is the wording of subsection 7(4) of those Regulations as it read at the time of the Associate Chief Justice's decision, namely, that the statutory stay period of 30 months created by the earlier part of that section would come to an end:
| (4) ... if the application is withdrawn or is finally dismissed by the court. |
The applicants rely heavily, indeed entirely, on a decision of this Court given a few days after the decision of the Associate Chief Justice, in File No. T-2673-96 in the case of Glaxo v. Novopharm, reasons issued February 9th, 1998 as yet unreported. In that case a judge of this Court ordered, while dismissing an application for prohibition made pursuant to section 6 of the Regulations:
| ... that the thirty month period prescribed in paragraph 7(1)(e) of the Regulations shall continue to apply until all appeals have been exhausted or all appeal periods have expired. |
[3] In my opinion, the applicants are barred from bringing the present application by reason of estoppel. It is common ground that the Associate Chief Justice was asked to make an order of the kind that was made by the Court in the Glaxo case just quoted. That request like the request in the Glaxo case was not contained in the originating notice of motion which commenced the application for prohibition, and the Minister in that case, as in the case before the Associate Chief Justice, was not heard on the matter. However, it is quite clear, and indeed admitted, that in the application before the Associate Chief Justice, both in the written memoranda submitted to him and in oral argument, he was asked to make an order of that kind. He did not do so. Furthermore, after the Associate Chief Justice had entered his order dismissing the prohibition applications, and after the Court had rendered its decision on February 9, 1998 in the Glaxo case, the Associate Chief Justice was asked to reconsider his previous decision so as to have it conform to the decision in the Glaxo case. That application for reconsideration was also refused by the Associate Chief Justice.
[4] In my view, there can be no clearer case of the application of the doctrine of res judicata. The relief which is today sought, is identical in substance to the relief which was twice sought and twice refused in the earlier cases between the same parties. That is what the doctrine of estoppel by judgment is about. Accordingly I shall dismiss these applications. I am prepared to hear counsel as to whether there are special reasons for making an order as to costs.
"James K. Hugessen"
Judge
Toronto, Ontario
April 21, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-308-98
| STYLE OF CAUSE: HOFFMANN-LA ROCHE LIMITED ET AL. |
- and -
| THE MINISTER OF NATIONAL HEALTH AND WELFARE ET AL. |
DATE OF HEARING: APRIL 20, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HUGESSEN, J.
DATED: APRIL 21, 1998
APPEARANCES:
Mr. Peter Wilcox
For the Applicants
Mr. F.B. Woyiwada
For the Respondent
| (Minister of National Health |
and Welfare)
Mr. Donald N. Plumley, Q.C.
Mr. Mark Mitchell
For the Respondent
(Novopharm Limited)
- 2 -
SOLICITORS OF RECORD:
Mr. Peter Wilcox
Smart & Biggar
Barristers & Solicitors
438 University Avenue
Suite 1500, Box 111
Toronto, Ontario
M5G 2K8
For the Applicants
Mr. F.B. Woyiwada
Civil Litigation Section
Department of justice Canada
Room 2303
2nd Floor
East Memorial Building
284 Wellington Street
Ottawa, Ontario
K1A 0H8
For the Respondent
| (Minister of National Health |
and Welfare)
Lang Michener
Barristers & Solicitors
BCE Place
P.O. Box 747, Suite 2500
181 Bay Street
Toronto, Ontario
M5J 2T7
For the Respondent
(Novopharm Limited)
FEDERAL COURT OF CANADA
Date: 19980421
Docket: T-308-98
Between:
| HOFFMANN, LA ROCHE LIMITED and SYNTEX PHARMACEUTICALS INTERNATIONAL LIMITED |
Applicants
- and -
| THE MINISTER OF NATIONAL HEALTH AND WELFARE and NOVOPHARM LIMITED |
Respondents
REASONS FOR ORDER
__________________