AB Hassle v. Canada ( Minister of National Health and Welfare )
T-1712-95 / T-421-96 / T-998-96
MacKay J.
8/1/97
22 pp.
Applications to declare second or further notice of allegation delivered by Apotex Inc. under Patented Medicines (Notice of Compliance) Regulations, s. 5 to be void, of no effect, and to permit applicants to withdraw proceedings initiated by originating notices of motion under Regulations-Previous decisions of Trial Division finding prior notice of allegation by Apotex, in relation to each of same drugs here involved, not justified-Minister prohibited from issuing notice of compliance (NOC) to Apotex for drug in issue-Decisions of Trial Division subject to appeals by both parties-Apotex serving on each of applicants further notice of allegation for claim manufacture, use, marketing of drug in question not infringement of applicants' claimed patent rights-Each of applicants filing second originating notice of motion for order prohibiting Minister from issuing NOC-Basic submissions of respective applicants similar-Regulations silent about whether more than one notice of allegation may be given by generic producer seeking to compare drug with one already approved for sale in Canada under NOC-Circumstances here different from those in Schering Canada Inc. v. Nu-Pharm Inc. (1994), 58 C.P.R (3d) 14 (F.C.T.D.)-When applications heard, Court had disposed of original applications and issued orders prohibiting Minister from issuing NOCs to Apotex for drugs in question-Notice of allegation not document filed with Court but with Minister-Beyond reach of Court's jurisdiction in judicial review proceeding-Court lacking jurisdiction to strike out notice of allegation-Declaration second or further notice of allegation, in each case, void and of no effect beyond Court's authority-Time for considering weight to be given to any evidence when whole evidence considered at hearing of originating notice of motion, not in interlocutory proceedings-Weight, significance to be attached to second notice of allegation must await determination when merits of applicants' second originating motion for prohibition heard with full argument-Nature of proceedings under Regulations and underlying intent matters be dealt with expeditiously, without numerous interlocutory applications, supporting principle weight of second notice of allegation matter for Court hearing application for prohibition-Second order sought by applicants, that they be permitted to withdraw proceeding, no longer of interest to them-Under Federal Court Act, s. 50(1)(b), Court may order stay of proceedings "in the interest of justice"-No evidence here adduced supporting finding of irreparable harm-No basis for ordering stay on usual tests-Principle of res judicata in narrow sense applicable only if essentially same notice of allegation before Court has already been determined not to be justified-In both AB Hassle and Astra Pharma (T-1712-95) and Glaxo Group Limited (T-998-96) applications, second notice of allegation different from first-Facts clearly setting out basis for allegation of non- infringement different from original allegation previously determined, on consent, not to be justified-Later notice of allegation leading to order prohibiting issue of NOC to Apotex-Application of Hoffmann-La Roche and Syntex (T-998-96) raising different considerations than in two other files as second notice of allegation essentially same as that already determined by Reed J., and upheld by Court of Appeal, not to be justified-To permit second round of proceedings, to determine issue already determined by judge of Trial Division and upheld by Court of Appeal would be abuse of process-Principle of res judicata applicable in Court file T-998-96-Proceedings stayed permanently in interests of justice unless matter permitted to proceed by further order of Court-Principle of res judicata not applicable where Apotex's notices of allegation not pleading before Court but statements submitted to Minister and to holder of NOC-Applications allowed in part-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 5-Federal Court Act, R.S.C., 1985, c. F-7, s. 50(1)(b).