Federal Court Decisions

Date: 20010608

Docket: T-1549-00

Neutral Citation: 2001 FCT 630

MONTREAL, QUEBEC, THIS 8^th DAY OF JUNE 2001

PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY

BETWEEN:

                                            ASTRAZENECA CANADA INC.

                                                                     and

                                                     MERCK & CO., INC.

                                                                                                                               Applicants

                                                                    AND

                                              THE MINISTER OF HEALTH

                                                                     and

                                                         NU-PHARM INC.

                                                                                                                          Respondents

                                      REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY:

[1]                WHEREAS the Applicants commenced this proceeding by Notice of Application dated August 21, 2000 under the Patented Medicines (Notice of Compliance) Regulations ("Regulations") in response to a letter dated July 3, 2000 from Nu-Pharm Inc. ("Nu-Pharm") in respect of Canadian Patent No. 1,275,350;

[2]                AND WHEREAS Nu-Pharm has withdrawn the allegation contained in its Notice of Allegation dated July 3, 2000 and the Notice of Allegation itself dated July 3, 2000;

[3]                AND WHEREAS by letter dated June 1, 2001, the Therapeutic Products Directorate of Health Canada has confirmed that Nu-Pharm does not have a Notice of Allegation in respect of lisinopril;

[4]                AND WHEREAS the Applicants have agreed to discontinue this Application;

[5]                AND WHEREAS the jurisprudence indicates that the withdrawal of an allegation renders an application under the Regulations moot;

[6]                IT IS HEREBY ORDERED THAT:

[7]                This application is moot.

[8]                The Applicants are at liberty to discontinue this Application.

[9]                Nu-Pharm shall pay the costs of the respective Applicants from the date of service of the July 3, 2000 letter ("the costs"). The Applicants have requested that the costs be on a solicitor-client basis. However, I am satisfied under the present circumstances that the allegation given by Nu-Pharm was withdrawn shortly after the inception of the Applicants' Application due to an unanticipated change of circumstances brought about by Apotex's refusal to supply any pre-patent lisinopril. I fail to see how the record discloses any reprehensible, scandalous or outrageous conduct on the part of Nu-Pharm during the course of the litigation. Therefore, the costs go to the Applicants in accordance with Column III of the table to Tariff B.

Richard Morneau                                 

Prothonotary

                                           FEDERAL COURT OF CANADA

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:

STYLE OF CAUSE:

T-1549-00

ASTRAZENECA CANADA INC.

and MERCK & CO., INC.

                                                                    Applicants

AND

THE MINISTER OF HEALTH

and NU-PHARM INC.

                                                                 Respondents

PLACE OF HEARING:Montreal, Quebec

DATE OF HEARING:June 4, 2001

REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF REASONS FOR ORDER:June 8, 2001

APPEARANCES:

Mr. Brian Daley		for the Applicants

Mr. D.M. Scrimger		for the Respondent Nu-Pharm Inc.

SOLICITORS OF RECORD:

Ogilvy Renault Montreal, Quebec
for the Applicant Merck & Co., Inc.Smart & Biggar Toronto, Ontario		for the Applicant AstraZeneca Canada Inc.
Mr. Morris Rosenberg Deputy Attorney General of Canada		for the Respondent, The Minister of Health

Goodmans LLP Toronto, Ontario

for the Respondent Nu-Pharm Inc.