Date: 19990615
Docket: A-130-99
(T-2552-97)
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
NU-PHARM INC.
Appellant
(Applicant)
- and -
THE ATTORNEY GENERAL OF CANADA and
THE MINISTER OF HEALTH
Respondents
(Respondents)
- and -
MERCK & CO. INC.
and MERCK FROSST CANADA & CO.
Respondents
(Respondents by
Order under Appeal)
Heard at Montreal (Quebec) on Tuesday, June 15, 1999.
Judgment delivered from the Bench on June 15, 1999.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY J.A.
Date: 19990615
Docket: A-130-99
(T-2552-97)
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
NU-PHARM INC.
Appellant
(Applicant)
- and -
THE ATTORNEY GENERAL OF CANADA and
THE MINISTER OF HEALTH
Respondents
(Respondents)
- and -
MERCK & CO. INC.
and MERCK FROSST CANADA & CO.
Respondents
(Respondents by
Order under Appeal)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montreal (Quebec)
on Tuesday, June 15, 1999)
DÉCARY J.A.
[1] Prior to the hearing of this appeal, the Court raised a preliminary question with respect to the authority of a judge of the Trial Division to make the impugned order. That question had obviously escaped the attention of counsel and of the learned judge.
[2] The facts pertaining to the preliminary question are quite simple.
[3] On September 11, 1997, Nu-Pharm Inc. ("Nu-Pharm") submitted an Abbreviated New Drug Submissions ("ANDS") to the Minister of Health ("the Minister") seeking a Notice of Compliance for Nu-Enalapril tablets. The Minister refused to receive and process Nu-Pharm's ANDS. Nu-Pharm commenced proceedings seeking a declaration that the Minister's refusal to process Nu-Pharm's ANDS was unlawful and should be set aside.
[4] On November 19, 1998, Mr. Justice Cullen allowed the application, set aside the Minister's refusal and referred the matter back to him for redetermination1. The Minister did not appeal the decision and eventually, on February 25, 1999, he issued the Notice of Compliance to Nu-Pharm.
[5] On January 31, 1999, Merck & Co. Inc. and Merck Frosst Canada & Co. ("Merck") applied to the Trial Division of the Federal Court for:
| (a) an Order under Rules 104(1)(b) and 303(1) of the Federal Court Rules adding Merck [...] as Respondents to the Originating Notice of Motion herein; or |
| (b) an Order under Rule 109(1) of the Federal Court Rules granting leave to Merck [...] to intervene in the within proceeding; |
| (c) an Order under Section 27(2) of the Federal Court Act extending the time for Merck [...] to appeal the Order of Mr. Justice Cullen [...] |
| (d) an Order identifying drug X and manufacturers A and B under conditions to be agreed upon by the parties or ordered by the Court; |
| (e) an Order pursuant to Sections 18.2 and 50 of the Federal Court Act staying the Order of Mr. Justice Cullen herein dated November 19, 1998, pending the hearing and determination of an appeal from the said Order of Justice Cullen; |
| (f) alternatively, an Order pursuant to Rules 399(1) and (2) of the Federal Court Rules setting aside or varying the Order of Mr. Justice Cullen dated November 19, 1998; |
| (g) such further and other Order as to the Honourable Court may seem just. |
[6] By Order dated February 17, 1999, a judge of the Trial Division allowed Merck's motion in the following terms:
| [16] The Court hereby grants the motion to allow Merck and Merck Frosst to be added in the proceeding as respondents. The Court also grants an extension of time of thirty (30) days from the date of this order for Merck and Merck Frosst to either appeal the decision of Mr. Justice Cullen dated November 19, 1998, or to make a motion to the Court pursuant to Rule 399 of the Federal Court Rules, 1998, requesting that Justice Cullen reconsider his order. |
[7] On March 1, 1999, Nu-Pharm appealed the Order of the Motions Judge.
[8] The Motions Judge did not specifically ruled on the alternative remedy sought by Merck in paragraph (f), that is the remedy based on rule 399. Furthermore, it is not clear to us what the judge meant when he spoke of an extension of time to make a motion under rule 399 "requesting that Justice Cullen reconsider his order". Rule 399 has no time limit, and reconsideration for an order is dealt with by rule 397, not by rule 399.
[9] Be that as it may, Merck, after having attempted in vain to have Mr. Justice Cullen reconsider his decision, opted for the appeal route and on March 16, 1999, it appealed Mr. Justice Cullen's Order. (that is File No. A-161-99, an appeal which is to be heard immediately following the hearing of the within appeal.)
[10] As already stated, prior to the hearing of this appeal, the Court informed counsel that it would hear them, at the beginning of the hearing, on the following question:
| Under what authority can a judge of the Trial Division of the Federal Court of Canada allow a third party to intervene and be added as a party respondent and file an appeal in the Court of Appeal after judgment has been rendered by the Trial Judge. |
[11] The answer to the question is in our respectful opinion, obvious. Only the Federal Court of Appeal could, arguably, once judgment on the merit of a case has been rendered by the Trial Division, allow a third party to be added as a party for the purpose of filing a Notice of Appeal in the Court of Appeal, and only in such circumstances as were described by the Supreme Court of Canada in Société des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents for Fairness in Education2.
[12] Rules 104(1)(b) (joinder of party) and 109(1) (intervention) are rules which can only be invoked before the division of the Court before which a proceeding is then pending. In the case at bar, there was no longer a proceeding before the Trial Division with respect to which Merck could be added as a party or as an intervener. If Merck were of the view that Nu-Pharm had the obligation under rule 303 to name Merck as a party respondent, Merck's recourse was to make a motion in the Trial Division under rule 399 to set aside the decision rendered or, arguably, to seek in the Court of Appeal leave to be added as a party for the purpose of launching an appeal.
[13] Subsection 27(2) of the Federal Court Act is of no help to Merck. That subsection authorizes the Trial Division to extend the time to appeal to the Court of Appeal; it does not authorize the Trial Division to grant status to a non-party to the proceeding for the purposes of seeking an extension of time to file an appeal.
[14] That being said, we cannot ignore that in its convoluted motion Merck had, as an alternative, sought under rule 399 to set aside Mr. Justice Cullen's decision, an option which, as we said earlier, was not formally ruled out by the Motions Judge and which may still be open to Merck, although the usefulness of such a motion, now that the Notice of Compliance has been issued by the Minister and attacked by Merck in the Trial Division, is not self-evident, particularly in view of subsection 3 of Rule 399.
[15] The Motions Judge had therefore no authority to allow Merck to become a party respondent for the purpose of launching an appeal in the Appeal Division of the Court
[16] The appeal will be allowed and the decision of the Motions Judge will be quashed, without prejudice to Merck's right to file a proper motion in the Trial Division pursuant to rule 399. Nu-Pharm will be entitled to its costs against Merck both here and below.
Robert Décary
J.A.
FEDERAL COURT OF APPEAL
Date: 19990615
Docket: A-130-99
(T-2552-97)
BETWEEN:
NU-PHARM INC.
Appellant
(Applicant)
AND
THE ATTORNEY GENERAL OF CANADA ET AL
Respondents
(Respondents)
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-130-99
| (T-2552-97) |
STYLE OF CAUSE: NU-PHARM INC.
Appellant
(Applicant)
| AND |
| THE ATTORNEY GENERAL OF CANADA and |
| THE MINISTER OF HEALTH |
Respondents
(Respondents)
| AND |
| MERCK & CO. INC. |
| and MERCK FROSST CANADA & CO. |
Respondents
(Respondents by
Order under Appeal)
PLACE OF HEARING: MONTREAL (QUEBEC)
DATE OF HEARING: June 15, 1999
REASONS FOR JUDGMENT OF DÉCARY, J.A.
DATED: June 15, 1999
APPEARANCES:
Mr. H.B. Radomski/
Ms. D.F. Bassan for the Appellant
Mr. F.B. (Rick) Woyiwada/ for the Respondents
Mr. George Hunter The Attorney General of Canada
and the Minister of Health
Mr. G. Alexander Macklin, Q.C./ for the Respondents
Ms. C. De Pellegrin Merck & Co. Inc. and
Merck Frosst Canada & Co.
SOLICITORS OF RECORD:
GOODMAN, PHILLIPS & VINEBERG
Toronto (Ontario) for the Appellant
DEPUTY ATTORNEY GENERAL for the Respondents
OF CANADA The Attorney General of Canada
Ottawa (Ontario) and the Minister of Health
GOWLING, STRATHY & HENDERSON for the Respondents
Ottawa (Ontario) Merck & Co. Inc. and
Merck Frosst Canada & Co.
__________________
1 Reported at [1999] 1 F.C. 620 (T.D.).
2 [1986] 1. S.C.R. 549 at 584 ff.