Date: 20020528
Docket: A-724-01
Neutral citation: 2002 FCA 222
CORAM: SEXTON J.A.
BETWEEN:
HOFFMAN-LaROCHE LIMITED
Appellant
(Defendant)
and
APOTEX INC.
Respondent
(Plaintiff)
and
SYNTEX PHARMACEUTICALS INTERNATIONAL LIMITED
Respondent
(Defendant)
Heard at Ottawa, Ontario, Tuesday, May 28, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on Tuesday, May 28, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20020528
Docket: A-724-01
Neutral citation: 2002 FCA 222
CORAM: SEXTON J.A.
BETWEEN:
HOFFMAN-LaROCHE LIMITED
Appellant
(Defendant)
and
APOTEX INC.
Respondent
(Plaintiff)
and
SYNTEX PHARMACEUTICALS INTERNATIONAL LIMITED
Respondent
(Defendant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on Tuesday, May 28, 2002)
[1] The issues in this case depend on the meaning to be attributed to the 1998 version of subsection 8(1) of the Patented Medicines (Notice of Compliance Regulations) SOR/93-133 and subsection 9(6) of the amending regulation SOR/98-166. In particular the issue arises as to whether the words "court hearing the application" must in all cases necessarily refer to the actual judge hearing the application for prohibition in the first instance or whether those words could also refer to the same judge of this Court hearing a subsequent motion to set aside a prohibition order. The other issue which arises is whether the word "pending" in subsection 9(6) must mean that an application which has been granted prior to March 12, 1998 (the date of transition) is not one to which the amended subsection 8(1) applies.
[2] There is no jurisprudence on these narrow issues and other judges in the Trial Division have declined to strike out Statements of Claim where the interpretation of those sections was involved.
[3] We are of the view that it is not plain and obvious that the plaintiff's claim in the present case is certain to fail which is the test set out by the Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. for striking out a Statement of Claim on the basis that it disclose no reasonable cause of action.
[4] Accordingly, we are unable to say that the Motions Judge made a palpable and overriding error in holding that the plaintiff's Statement of Claim should not be struck out.
[5] This appeal will therefore be dismissed with costs.
"J. EDGAR SEXTON"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-724-01
STYLE OF CAUSE: HOFFMAN-LaROCHE LIMITED
and
APOTEX INC.
and
SYNTEX PHARMACEUTICALS INTERNATIONAL
LIMITED
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 28TH, 2002
REASONS FOR JUDGMENT
OF THE COURT BY: SEXTON J.A.
DELIVERED FROM THE BENCH AT OTTAWA, ONTARIO, ON TUESDAY, MAY 28, 2002.
DATED: MAY 28TH, 2002
APPEARANCES:
MR. GUNAR A. GAIKIS
FOR THE APPELLANT
MR. ANDREW BRODKIN
FOR THE RESPONDENT
SOLICITORS OF RECORD:
SMART & BIGGAR
TORONTO, ONTARIO
FOR THE APPELLANT
GOODMANS
TORONTO, ONTARIO
FOR THE RESPONDENT