Merck Frosst Canada Inc. v. Canada ( Minister of National Health and Welfare )
T-1695-95
Rothstein J.
26/3/97
15 pp.
Whether application for prohibition under Patented Medicines (Notice of Compliance) Regulations, s. 6(1) moot-Lovastatin, anti-cholesterol drug, sought to be marketed by Apotex and subject to Merck patent-In April 1993, Apotex filed new drug submission together with allegation of non-infringement of Merck's relevant patent-Merck initiated prohibition proceedings (T1305-95) under Regulations, s. 6(1)-In June 1995, Apotex filed second allegation with respect to another process by which lovastatin alleged to be produced without infringing Merck's patent-Second allegation in effect amendment or addition to new drug submission of April 1993-Merck initiated second prohibition proceedings in respect of second notice of allegation-In February 1997, Apotex says withdrew its second allegation-On same day, as result of FCA decision reversing order (in Court file T-1305-95) extending statutory stay under Regulations, s. 7(1)(e), statutory stay had expired on December 1, 1996-Apotex thought this brought to end prohibition application in T-1305-95 and that NOC would issue in respect of its new drug submission and allegation for lovastatin-Merck wrote Minister that in spite of FCA decision, prohibition still held by reason of proceedings herein (T-1695-95)-Apotex therefore withdrew its allegation giving rise to prohibition application herein-Merck advised Minister latter still prohibited from issuing notice of compliance-Apotex then wrote Minister formally withdrawing allegation-Minister indicated to both that withdrawal of second notice of allegation insufficient to negate statutory stay-Apotex now seeking order dismissing prohibition application herein on grounds application, because of withdrawal of allegation giving rise to application, moot-Merck argues under Regulations, if Court grants prohibition order, latter effective at large against Apotex in respect of patented drug at issue-Merck relying on Regulations, s. 7(1)(f)-Application to dismiss prohibition application on grounds of mootness granted and prohibition application dismissed-On balance of probabilities, withdrawal of allegation by Apotex effective as far as Minister concerned-Second alleged non-infringing process not now part of Apotex's new drug submission upon which notice of compliance would be based-Prohibition application indeed moot-45-day time limit in Regulations, s. 7(1)(b), (d) not determinative of date for adjudication as practical effect on rights of parties must still be present not just when proceedings commenced but when Court called upon to make decision-Herein, decision will have no practical effect on rights of parties as allegation giving rise to prohibition application withdrawn-Applying criteria in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 340 (adversarial context (collateral consequences arising from moot proceedings), special circumstances such as issue of public importance, whether judicial branch would be seen to be intruding into function of legislative branch), discretion not exercised to decide issue even though moot-Prohibition application solely related to allegations giving rise to it, without collateral consequences or other factors suggesting adversarial relationship prevails herein-No special circumstances, no issue of public importance would be resolved-Successive filing and subsequent withdrawal not case of abuse herein-Intrusion upon functions of legislative branch not consideration herein-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 6(1), 7(1)(b), (d), (f).