T-667-99
Pfizer Inc. and Pfizer Canada Inc. (Plaintiffs)
v.
Her Majesty the Queen, the Minister of Health and Apotex Inc. (Defendants)
and
Canadian Drug Manufacturers Association (Intervener)
Indexed as: Pfizer Inc.v. Canada (T.D.)
Trial Division, Lemieux J."Ottawa, June 25 and July 9, 1999.
Patents — Duration — Patent Act providing 17-year protection for patents — Agreement on Trade-Related Aspects of Intellectual Property Rights provision requiring member countries to provide minimum 20-year protection for patents not applicable in Canada as not implemented into Canadian domestic law — Furthermore, defendant barred from commencing action as failed to obtain consent of Attorney General required by World Trade Organization Agreement Implementation Act, ss. 5, 6 — Latter provisions not contrary to Bill of Rights nor to rule of law as not constituting denial of access to courts.
International law — Implementation of treaties — World Trade Organization Agreement Implementation Act provisions stating WTO Agreement approved (s. 8) and purpose of Act to implement Agreement (s. 3) not sufficient to legislate into federal domestic law WTO Agreement and Agreement on Trade-Related Aspects of Intellectual Property Rights provision requiring member countries to provide minimum 20-year protection for patents.
Pfizer Inc. was the owner of a Canadian patent for sertraline hydrochloride for which it applied in October 1980 and which was issued to it in August 1982. Pfizer Canada Inc. was the exclusive licencee in Canada. The protection afforded to patents under section 45 of the Patent Act was 17 years from the date of issuance. However, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), one of the agreements annexed to the World Trade Organization Agreement, required member countries to provide a minimum term of protection of 20 years from the filing date of the patent application. Pfizer Inc. sought a declaration, based on the TRIPS Agreement, which it argued was implemented in Canada by the World Trade Organization Agreement Implementation Act (WTO Agreement Implementation Act), that its patent will not expire until October 2000 instead of August 1999.
The Crown filed a motion to strike out the statement of claim and dismiss the action on three grounds: the plaintiffs were barred from commencing that action without the consent of the Attorney General; the relevant provisions have not been implemented into Canadian domestic law; this Court did not have jurisdiction herein to issue an injunction against the Minister.
Held, the motion should be allowed and the action dismissed.
To succeed in their action, the plaintiffs had to establish that the WTO Agreement, which annexed the TRIPS Agreement (and its provision concerning a 20-year protection for patents), had been legislated into domestic law through the WTO Agreement Implementation Act. The provisions of section 3 (the purpose of the Act is to implement the Agreement) and section 8 (the Agreement is hereby approved) of the WTO Agreement Implementation Act were not sufficient to establish that the WTO Agreement and the TRIPS Agreement had been legislated into federal law. Parliament manifestly indicated its intention as to how it was implementing the WTO Agreement and its annexed TRIPS Agreement or any part thereof: it gave legal effect to its WTO obligations by carefully examining the nature of those obligations, assessing the state of existing federal statutory and regulatory law and then deciding the specific and precise legislative changes which were required to implement the WTO Agreement. And since Parliament did not change the provisions of sections 44 and 45 of the Patent Act to provide what Pfizer was seeking, the 20-year protection had not been implemented and the 17-year protection remained in effect. Statutory change was required and Parliament has not made that change. Whether Parliament was thereby in breach of its international obligations was immaterial to the question herein. On this basis, the motion to strike had to be granted and the action dismissed.
Semble, the plaintiffs were barred from commencing the present action by sections 5 and 6 of the WTO Agreement Implementation Act which require the consent of the Attorney General. The declaration sought by the plaintiffs was to enforce or determine a right or obligation that arose solely from or by virtue of the WTO Agreement. However, what Parliament was saying in sections 5 and 6 of the Act was that these international trade agreements were matters of public law concerning public rights, not matters of private economic or commercial rights giving rise to causes of action and legal proceedings. These sections did not eliminate any private rights; they did not extinguish rights; Parliament was simply saying no such rights arose. There were mechanisms for dispute settlement and the enforcement of panel or arbitration rulings. Parliament did not want private parties, except where appropriate, to initiate private actions which would disrupt or adversely affect the agreed to equilibrium for dispute settlement. In this sense, these sections did not constitute a denial of access to the courts. The rule of law (requiring that government action comply with the Constitution) could not be interpreted as a sword to strike down sections 5 and 6 of the WTO Agreement Implementation Act: Bacon v. Saskatchewan Crop Insurance Corp., [1999] S.J. No. 302 (C.A.) (QL). Paragraph 2(e) of the Canadian Bill of Rights did not confer the kind of substantive rights claimed here.
| statutes and regulations judicially considered |
| Agreement on Agriculture, being part of Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3, Art. 5. |
| Agreement on Rules of Origin, being part of Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3. |
| Agreement on Safeguards, being part of Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3, Art. 6. |
| Agreement on Subsidies and Countervailing Measures, being part of Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3. |
| Agreement on Textiles and Clothing, being part of Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3. |
| Agreement on Trade-Related Aspects of Intellectual Property Rights, being Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3, Arts. 33, 39(3). |
| An Act respecting the Vancouver Island Railway, the Esquimalt Graving Dock, and certain Railway Lands of the Province of British Columbia, granted to the Dominion, S.C. 1884, c. 6, s. 2, Schedule. |
| Bank Act, R.S.C., 1985, c. B-1. |
| Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, s. 5. |
| Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e). |
| Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 92. |
| Copyright Act, R.S.C., 1985, c. C-42. |
| Customs Tariff, R.S.C., 1985 (3rd Supp.), c. 41. |
| Export and Import Permits Act, R.S.C., 1985, c. E-19. |
| Farm Income Insurance Legislation Amendment Act, 1992 (The), S.S. 1992, c. 51, s. 13.2(1). |
| Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5). |
| Federal Court Rules, 1998, SOR/98-106, r. 221. |
| Fertilizers Act, R.S.C., 1985, c. F-10. |
| Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, being part of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3, s. 2(a). |
| Financial Administration Act, R.S.C., 1985, c. F-11. |
| Food and Drugs Act, R.S.C., 1985, c. F-27. |
| General Agreement on Tariffs and Trade, October 30, 1947, [1948] Can. T.S. No. 31. |
| Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3, Art. XVI(4). |
| North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, s. 6. |
| Patent Act, R.S.C., 1985, c. P-4, ss. 2 "country" (as am. by S.C. 1994, c. 47, s. 141), 19.1 (as am. idem , s. 142), 44 (as am. by S.C. 1993, c. 15, s. 42), 45 (as am. idem), 55.2(4) (as enacted by S.C. 1993, c. 2, s. 4). |
| Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 7 (as am. by SOR/98-166, s. 6). |
| Special Import Measures Act, R.S.C., 1985, c. S-15. |
| Trade-marks Act, R.S.C., 1985, c. T-13. |
| Understanding on Rules and Procedures Governing the Settlement of Disputes, being Annex 2 of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Marrakesh, 1867 U.N.T.S. 3, Art. 22. |
| World Trade Organization Agreement Implementation Act, S.C. 1994, c. 47, preamble, ss. 2 "Agreement", 3, 5, 6, 8, 75(2), 81(5), 83, 95(1), 103(3), 115, 116, 117, 141, 142, 144(3). |
| cases judicially considered |
| applied: |
| Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; [1990] 6 W.W.R. 385; 49 B.C.L.R. (2d) 273; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 117 N.R. 321; Re British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway, [1994] 2 S.C.R. 41; (1994), 114 D.L.R. (4th) 193; [1994] 6 W.W.R. 1; 91 B.C.L.R. (2d) 1; 21 Admin. L.R. (2d) 1; 44 B.C.A.C. 1; 166 N.R. 81; 71 W.A.C. 1; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; (1998), 161 D.L.R. (4th) 385; 55 C.R.R. (2d) 1; 228 N.R. 203; Bacon v. Saskatchewan Crop Insurance Corp., [1999] S.J. No. 302 (C.A.) (QL). |
| considered: |
| UL Canada inc. c. Québec (Procureur général), [1999] J.Q. No. 1540 (Sup. Ct.) (QL). |
| referred to: |
| Waterside Ocean Navigation Co., Inc. v. International Navigation Ltd., [1977] 2 F.C. 257 (T.D.); Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commn., [1978] 2 S.C.R. 141; (1977), 81 D.L.R. (3d) 609; 36 C.P.R. (2d) 1; 18 N.R. 181; Reference re Weekly Rest in Industrial Undertaking Act, [1937] 1 D.L.R. 673; [1937] 1 W.W.R. 299; [1937] A.C. 326 (P.C.); Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592; (1991), 15 Imm. L.R. (2d) 1; 135 N.R. 50 (C.A.); Duke v. The Queen, [1972] S.C.R. 917; (1972), 28 D.L.R. (3d) 129; 7 C.C.C. (2d) 474; 18 C.R.N.S. 302. |
| authors cited |
| Hogg, Peter W. Constitutional Law of Canada, 4th ed. Scarborough, Ont.: Carswell, 1996. |
MOTION to strike the statement of claim and dismiss the action in which the plaintiffs argued that their patent (for which the Patent Act provides a 17-year protection) was entitled to a 20-year protection under the World Trade Organization Agreement, legislated into domestic law through the WTO Agreement Implementation Act. Motion allowed; action dismissed.
| appearances: |
| Richard G. Dearden and Ronald D. Lunau for plaintiffs. |
| Frederick B. Woyiwada for defendants, Her Majesty the Queen and the Minister of Health. |
| Harry B. Radomski and Daniela Bassan for defendant, Apotex. |
| Roger Bauman for intervener, Canadian Drug Manufacturers Association. |
| solicitors of record: |
| Gowling, Strathy & Henderson, Ottawa, for plaintiffs. |
| Deputy Attorney General of Canada for defendants, Her Majesty the Queen and the Minister of Health. |
| Goodman Phillips & Vineberg, Toronto, for defendant, Apotex Inc. |
| Hazzard & Hore, Toronto, for intervener, Canadian Drug Manufacturers Association. |
The following are the reasons for order rendered in English by
Lemieux J.:
INTRODUCTION
[1]The defendants, Her Majesty the Queen and the Minister of Health and Welfare for Canada (defendants) move, pursuant to rule 221 of the Federal Court Rules, 1998 [SOR/98-106], to strike an action commenced by a statement of claim filed by the plaintiffs Pfizer Inc. and Pfizer Canada Inc. (Pfizer).
[2]Pfizer Inc. is the owner of Canadian Patent No. 1,130,815 (the N815 patent). Pfizer Canada Inc. is the exclusive licensee in Canada. The N815 patent relates to the compound sertraline hydrochloride. Pfizer Canada markets sertraline hydrochloride products across Canada under its trade-mark Zoloft.
[3]Pfizer Inc. applied for the N815 patent on October 30, 1980; the N815 patent was issued to Pfizer Inc. on August 31, 1982. On January 30, 1992, Pfizer Canada obtained from the Minister of Health and Welfare for Canada (the Minister) a notice of compliance (NOC) pursuant to the federal Food and Drugs Act [R.S.C., 1985, c. F-27] (FDA) authorizing Pfizer to market Zoloft in Canada.
[4]Section 45 of the Patent Act, R.S.C., 1985, c. P-4, as amended in 1993 [S.C. 1993, c. 15, s. 42], provides, where a patent application was filed before October 31, 1989, the expiry date of that patent is 17 years from the date of issuance. The N815 patent is by the terms of section 45 of the Act to expire on August 31, 1999.
[5]Section 45 of the Act is to be contrasted with section 44 [as am. idem] of that same Act. Section 44 of the Act, as amended in 1993, provides that where an application for a patent is filed on or after October 1, 1989, the term limited for the duration of the patent is 20 years from the filing date.
[6]Pfizer's statement of claim, issued in this Court on April 15, 1999:
(a) seeks a declaration that the expiry date of the N815 patent is October 30, 2000;
(b) interim and interlocutory injunctions, pending the trial of the action, enjoining the Minister from issuing, without Pfizer's consent, an NOC pursuant to the FDA and the Patented Medicines (Notice of Compliance) Regulations [SOR/93-133] (the Regulations) to any other drug manufacturer;
(c) a permanent order enjoining the Minister from issuing an NOC to any other drug manufacturer until the N815 patent expires on October 30, 2000.
[7]The Patented Medicines (Notice of Compliance) Regulations were enacted by the Governor in Council on March 12, 1993, pursuant to subsection 55.2(4) [as enacted by S.C. 1993, c. 2, s. 4] of the Patent Act amendment of that year. These Regulations have been considered many times by this Court and the Federal Court of Appeal. The Regulations link the issuance of an NOC under the FDA, a regulatory approval which is necessary in order to market a drug in Canada, to issued pharmaceutical patents appearing in patent lists maintained pursuant to the Regulations. Section 7 [as am. by SOR/98-166, s. 6] of the Regulations prohibits the Minister from issuing an NOC in certain circumstances related to a pharmaceutical patent. However, there is no bar on the Minister from issuing an NOC if the patent has expired.
[8]The basis for the relief claimed by Pfizer is Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) which requires member countries to provide a minimum term of protection for all patents not less than 20 years from the filing date of a patent application. Since Pfizer applied for the N815 patent on October 30, 1980, Pfizer claims under the TRIPS Agreement an expiry date of October 30, 2000.
[9]The TRIPS Agreement is one of the agreements annexed [Annex 1C] to the Marrakesh Agreement Establishing the World Trade Organization [15 April 1994, Marrakesh, 1867 U.N.T.S. 3] (WTO Agreement) which Pfizer says by the provisions of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations [being Part of the WTO Agreement] (the Final Act), Canada agreed in paragraph 2(a) thereof to submit, as appropriate for the consideration of their respective competent authorities with a view to seeking approval of the WTO Agreement in accordance with their procedures. Pfizer also relies upon the provisions of the WTO Agreement specifically in Article XVI(4) thereof which provides that: "[e]ach Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements". Against this background and in this context, the Parliament of Canada enacted the World Trade Organization Agreement Implementation Act [S.C. 1994, c. 47] (WTO Agreement Implementation Act) in 1994.
THE MOTION TO STRIKE
[10]The defendants based their motion to strike on three grounds.
[11]First, the defendants say, on the basis of sections 5 and 6 of the WTO Agreement Implementation Act, the aggregate effect of which is to bar any person from commencing any type of legal actions under either the Act itself or the underlying WTO Agreement without the consent of the Attorney General, that the plaintiffs' action is barred, said consent having not been given in this case.
[12]Second, the defendants submit that the provisions of an agreement between Canada and any foreign state are implemented into Canadian domestic law only in so far as they are explicitly enacted in legislation passed in the ordinary way by Parliament and further submit that no enactment exists amending the Patent Act, to grant to the plaintiffs the patent term claimed in the statement of claim occurred.
[13]Third, the defendants say that by virtue of section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)], this Court only has jurisdiction to issue an injunction against the Minister and this only on application for judicial review brought under section 18.1 [as enacted idem, s. 5] of the Federal Court Act.
[14]Accordingly, defendants say the statement of claim as a whole, or at least that part of it which claims injunctive relief against the Minister, discloses no cause of action and is frivolous or vexatious, or is otherwise an abuse of the process of the Court and it ought to be struck out in whole or in part under rule 221 of the Federal Court Rules, 1998.
[15]In terms of documentary evidence, the defendants' motion to strike is based on the pleadings.
[16]In responding to the motion to strike, Pfizer has filed affidavit evidence. The defendant Apotex Inc. (added as a party to this action by order of this Court) challenges Pfizer's right to file affidavit evidence. In doing so, Apotex Inc. relies on the provisions of subsection 221(2) of the Rules, which provides that no evidence shall be heard on a motion for an order under paragraph 221(1)(a) of the Rules. That paragraph, however, only relates to the ground on a motion to strike that the pleading discloses no reasonable cause of action. The defendants' present motion before the Court is not limited to paragraph 221(1)(a) but includes other grounds in respect of which affidavit evidence may be properly adduced (see Waterside Ocean Navigation Co., Inc. v. International Navigation Ltd., [1977] 2 F.C. 257 (T.D.)). For the reasons that follow, I am of the view the defendants' motion to strike can be resolved solely on the basis of paragraph 221(1)(a) of the Rules. In the circumstances, I need not and have not considered Pfizer's affidavit evidence.
THE TEST IN A PARAGRAPH 221(1)(a) MOTION
[17]The Supreme Court of Canada, has on several occasions, set out the test a defendant must meet on a motion under paragraph 221(1)(a). In Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735, Estey J. succinctly put the test in the following words, at page 740:
As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt".
[18]Similar views were expressed by Wilson J. in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, where it was held that the power to strike must be exercised with great care and only in cases where the plaintiff or defendant could not possibly succeed.
THE STRUCTURE OF THE WTO AGREEMENT IMPLEMENTATION ACT
[19]The WTO Agreement Implementation Act is at the heart of the matter before me. Its provisions require extensive canvassing. The WTO Agreement Implementation Act is divided into a number of parts namely a preamble, a general section containing definitions, the purpose of the Act and statutory bars of action. Part I is entitled "Implementation of Agreement Generally", and Part II is entitled "Related and Consequential Amendments" and Part III concerns the coming into force of various provisions of the Act. The Act also includes a number of schedules.
| (a) The Preamble |
[20]The preamble, in its first recital, explains that "the Government of Canada together with the other governments and the European Communities that participated in the Uruguay Round of Multilateral Trade Negotiations under the General Agreement on Tariffs and Trade [[1948] Can. T.S. No. 31] . . . have entered into the Agreement Establishing the World Trade Organization". The sixth recital of the preamble indicates that the "World Trade Organization will provide for integrated management of the new and strengthened multilateral trading system, particularly for the resolution of trade disputes". The eighth recital reads as follows:
And whereas it is necessary, in order to give effect to the Agreement, to make related or consequential amendments to certain Acts;
| (b) The General Clauses |
[21]The introductory part [section 2] of the WTO Agreement Implementation Act contains definitions including a definition of "Agreement" which reads as follows:
2. (1) . . .
| "Agreement" means the Agreement establishing the World Trade Organization, including |
| (a) the agreements set out in annexes 1(A), 1(B), 1(C), 2 and 3 of that Agreement and |
| (b) the agreements set out in Annex 4 to that Agreement that have been accepted by Canada, |
[22]The TRIPS Agreement is contained in Annex 1(C) of the WTO Agreement.
[23]Subsection 2(2) provides that the Agreement shall be published in the Canada Treaties Series.
[24]Section 3 deals with its purpose and reads:
3. The purpose of this Act is to implement the Agreement.
[25]Sections 5 and 6, under the heading "General" contain the statutory bars upon which the defendants rely. They read:
5. No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right of obligation that is claimed or arises solely under or by virtue of Part I or any order made under Part I.
6. No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of the Agreement.
| (c) Part I |
[26]Part I, as noted, is headed "Implementation of Agreement Generally". Section 8 is headed "Approval of Agreement" and simply reads:
8. The Agreement is hereby approved.
[27]Other provisions of Part I include authority in the Governor in Council to appoint a designated Minister for the purposes of any provisions of the Act, authorizing the Governor in Council to appoint a Minister to be the representative of Canada in respect of the Ministerial Conferences established under the WTO Agreement, authorizing the Governor in Council, for the purpose of suspending, in accordance with the Agreement, the application to a WTO member of concessions or obligations of equivalent effect pursuant to Article 22 of the Understanding on Rules and Procedures Governing Settlement of Disputes [being Annex 2 of the WTO Agreement] and the likewise authority in the Governor in Council to suspend rights or privileges granted by Canada to a non-WTO member.
| (d) Part II |
[28]Part II, headed "Related and Consequential Amendments", contains amendments to a large number of federal statutes in respect of which Parliament had constitutional authority on a division of legislative power basis.
[29]A close examination of the specific Part II WTO Agreement Implementation Act amendments is revealing. Such an examination demonstrates that Parliament did not resort to a single method of implementation. Specificity is the hallmark of Part II. The nature of the required Parliamentary intervention varied according to the circumstances. I have in mind factors such as the nature of a specific obligation contracted for by Canada, the characteristics of existing federal statutory or regulatory requirements (are the prescriptions contained in a statute or in a regulation), the need for flexibility and the presence of federal authority mandated to administer on a case-by-case basis contracted obligations (a good example of such a federal authority is the Canadian International Trade Tribunal which decides, on the ground so to speak, dumping, subsidies and other cases).
[30]The implementation techniques chosen by Parliament, as I see it, varied from:
(a) amending or repealing statutory provisions (amendments to the Bank Act [R.S.C., 1985, c. B-1] are an example);
(b) adding substantive provisions creating new rights (amendments to the Copyright Act [R.S.C., 1985, c. C-42] in respect of performance rights);
(c) authorizing the making of regulations (for example, the Governor in Council is authorized under the Customs Tariff [R.S.C., 1985 (3rd Supp.), c. 41] "[f]or the purpose of implementing the Agreement on Rules of Origin in Annex 1A of the World Trade Organization Agreement" [subsection 75(2)];
(d) under the Customs Tariff, the Governor in Council is authorized, "[f]or the purpose of carrying out Article 6 of the Agreement on Safeguards in Annex IA of the World Trade Organization Agreement . . . by order, to refund any surtaxes paid" [subsection 81(5)];
(e) under the Customs Tariff, in respect of special safeguard measures for agricultural goods, the Governor in Council is authorized, by order, to impose a surtax and conditions but before doing so, "the Minister of Finance must be satisfied, on the basis of a report of the Minister of Agriculture, that the conditions set out in Article 5 of the Agreement on Agriculture in Annex 1A of the World Trade Organization Agreement for the imposition of any additional duty on the prescribed agricultural goods have been met" [section 83];
(f) under the Customs Tariff, the Governor in Council is authorized to amend certain schedules to "the Customs Tariff where the Governor in Council deems it necessary to do so as a consequence of the implementation in Canada of World Trade Organization Agreement" [subsection 95(1)];
(g) under the Export and Import Permits Act [R.S.C., 1985, c. E-19], the Governor in Council is authorized to add certain goods to the import control list "to prevent the frustration of circumvention of the Agreement on Textiles and Clothing in Annex 1A of the World Trade Organization Agreement" [subsection 103(3)];
(h) under the Financial Administration Act [R.S.C., 1985, c. F-11], "the Governor in Council may give a directive . . . to any parent Crown corporation for the purpose of implementing any provision of the WTO Agreement that pertains to that Crown corporation" [section 116];
(i) the Special Import Measures Act [R.S.C., 1985, c. S-15] was amended to provide for a definition of "non-actionable subsidy" with specific reference to the Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures being part of Annex 1A of the WTO Agreement [subsection 144(3)].
[31]The TRIPS Agreement is mentioned in various provisions found in Part II of the WTO Agreement Implementation Act. For example:
(a) the Fertilizers Act [R.S.C., 1985, c. F-10] is amended to confer upon the Governor in Council power to make regulations "for the purpose of implementing, in relation to fertilizers or supplements, . . . paragraph 3 of Article 39 of the [TRIPS Agreement]" [section 115];
(b) the Food and Drugs Act was amended to confer upon the Governor in Council the power to make "regulations as the Governor in Council deems necessary for the purpose of implementing, in relation to drugs, . . . paragraph 3 of Article 39 of the [TRIPS Agreement] set out in Annex 1C to the WTO Agreement" [section 117];
[32]Interestingly enough, the Patent Act was amended in Part II. Existing sections 44 and 45 previously amended in 1993 were not further amended. Only two changes were made to the Patent Act. The definition of "country" was amended [in section 141] to include a member of the WTO. Section 19.1 of the Act was amended [in section 142] to provide that "[t]he Commissioner may not, under section 19, authorize any use of semi-conductor technology other than a public non-commercial use".
[33]In terms of intellectual property, I note the Trade-marks Act, [R.S.C., 1985, c. T-13] was extensively amended with reference made to the TRIPS Agreement.
ANALYSIS
| (a) Has the WTO Agreement been legislated into domestic law |
[34]To succeed in their declaration that the term of the N815 patent is October 20, 2000, the plaintiffs must establish the WTO Agreement which annexes the TRIPS Agreement has been legislated into domestic law through the WTO Agreement Implementation Act. Pfizer argues that this is so through the combined effect of the purpose clause which is to implement the WTO Agreement, the approval clause whereby the Agreement is approved and Canada's commitments under the Final Act and the WTO Agreement.
[35]In so submitting, Pfizer seems to accept the distinction between treaty making and treaty implementation. Pfizer also accepts the proposition that many treaties cannot be implemented without alteration to the internal law of Canada which can only be done by the enactment of legislation to alter that domestic law. See Peter W. Hogg, Constitutional Law of Canada, 4th ed., at pages 293-294; Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commn., [1978] 2 S.C.R. 141, at page 173 where Laskin C.J. said this:
Indeed, if the contention of the appellants has any force under its first submission it can only relate to the obligations of Canada under the Convention towards other ratifying signatories. There would be no domestic, internal consequences unless they arose from implementing legislation giving the Convention a legal effect within Canada.
[36]The WTO Agreement is an international agreement to which sovereign states are the only parties. The central issue in this case is whether Parliament, in enacting the WTO Agreement Implementation Act, gave legal effect or translated into federal law that Agreement as a whole and, in particular, its annexed TRIPS Agreement or Article 33 thereof.
[37]Defendants refer to a number of cases including Reference re Weekly Rest in Industrial Undertakings Act, [1937] 1 D.L.R. 673 (P.C.) and a recent case cited by Guthrie J. in UL Canada inc. c. Québec (Procureur général), [1999] J.Q. No. 1540 (Sup. Ct.) (QL), for the proposition that a simple approval by Parliament does not operate to legislate an international agreement into federal law. In the UL Canada inc. case, Guthrie J. considered whether the North American Free Trade Agreement Implementation Act [S.C. 1993, c. 44] and the WTO Agreement Implementation Act made the international agreements domestic law, whether federal or provincial. At paragraph 86 of the case, Guthrie J. said this:
[translation] The Act Respecting the Implementation of International Trade Agreements, which is the Quebec implementing statute for NAFTA, does not amend either the Dairy Products Substitutes Act or Regulations which include paragraph 40(1)(c). In fact, section 2 of this implementing statutes simply states that NAFTA is "approved" by the National Assembly. However, the case law and authorities have taken the position that simple parliamentary approval of a treaty does not make it domestic law.
[38]Guthrie J., at paragraph 95, applied the same reasoning to the WTO Agreement Implementation Act to the effect the WTO Agreement was not made part of federal law.
[39]Pfizer counters principally with the case of Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.). Mahoney J.A., at pages 607-608, considered the international law agreements which involved the Fourth Geneva Convention.
[40]In my view, much guidance to answer the central question considered here is derived from the recent Supreme Court of Canada judgment in Re British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway, [1994] 2 S.C.R. 41.
[41]The issue before the Court was whether a federal statute had given statutory force to the Dunsmuir Agreement [being Schedule to An Act respecting the Vancouver Island Railways, the Esquimalt Graving Dock, and certain Railway Lands of the Province of British Columbia, granted to the Dominion, S.C. 1884, c. 6] such that the provisions of the Dunsmuir Agreement were, in effect, the provisions of the federal statute itself.
[42]The Dunsmuir Agreement was a schedule to a federal Act. Section 2 of the federal Act with respect to the Dunsmuir Agreement said:
2. The agreement, . . . is hereby approved and ratified, and the Governor in Council is authorized to carry out the provisions thereof according to their purport.
[43]Iacobucci J. delivered reasons for judgment on behalf of seven judges of the Court. The Court held the Dunsmuir Agreement was not legislated into law, i.e. endowed it with statutory force. As I read this judgment, the Supreme Court of Canada established the following principles in reaching its conclusion:
(a) whether an agreement is legislated so as to become endowed with statutory force is a matter of discovering Parliament's intention;
(b) all of the tools of statutory interpretation can be called in aid to determine whether incorporation is intended (see page 110);
(c) Iacobucci J. said this at page 110:
I do believe, however, that simple "ratification" or "confirmation" of a scheduled agreement, without more, is equivocal in terms of the required legislative intention.
(d) as a factor in discovering Parliamentary intent, Iacobucci J. took into account the fact that the federal Act repeated parts of the Dunsmuir Agreement in the text of the statute. He said this at page 111:
The Dominion Act simply confirms and ratifies the Dunsmuir Agreement, authorizes the Governor in Council to carry out the contract, and proceeds, in several of its provisions, to recount specifically clauses from that contract (ss. 4, 5, 6, 8, and 9). If the Dunsmuir Agreement was intended to have statutory force, I would find this repetition of contractual provisions in the text of the Dominion Act to be inexplicable.
[44]I have come to the conclusion it is plain and obvious that Parliament did not legislate into federal domestic law the WTO Agreement and, in particular, Article 33 of the TRIPS Agreement, which is essential to the success of Pfizer's declaration.
[45]Parliament, in my view, manifestly indicated its intention as to how it was implementing the WTO Agreement and its annexed TRIPS Agreement or any part thereof. Parliament gave legal effect to its WTO obligations by carefully examining the nature of those obligations, assessing the state of the existing federal statutory and regulatory law and then deciding the specific and precise legislative changes which were required to implement the WTO Agreement.
[46]The term of a patent is a matter governed by the Patent Act. Parliament did not change the provisions of sections 44 and 45 of that Act to provide what Pfizer is seeking. Statutory change was required and Parliament did not make that change. Whether Parliament, in doing so, was in breach of its international obligations is not material to the question before me. The WTO Agreement has procedures, government to government, to deal with a question of that nature.
[47]To accede to Pfizer's argument would, in my view, make redundant and negate the entire overall structure and approach taken by Parliament to implement the WTO Agreement obligations through the WTO Agreement Implementation Act. By analogy to what Iacobucci J. said in Re British Columbia, supra, if Parliament had intended the WTO Agreement to have statutory force, it would not have enacted Part II of the WTO Implementation Act in the detailed and careful manner it did.
[48]In short, Pfizer fails in its arguments. When Parliament said, in section 3 of the WTO Agreement Implementation Act, that the purpose of that Act was to implement the Agreement, Parliament was merely saying the obvious; it was providing for the implementation of the WTO Agreement as contained in the statute as a whole including Part II dealing with specific statutory changes. When Parliament said in section 8 of the WTO Agreement Implementation Act that it was approving the WTO Agreement, Parliament did not incorporate the WTO Agreement into federal law. Indeed, it could not, because some aspects of the WTO Agreement could only be implemented by the provinces under their constitutional legislative authority pursuant to section 92 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]. What Parliament did in approving the Agreement is to anchor the Agreement as the basis for its participation in the World Trade Organization, Canada's adherence to WTO mechanisms such as dispute settlement and the basis for implementation where adaptation through regulation or adjudication was required.
[49]On this basis, the defendants' motion to strike is granted, Pfizer's statement of claim in this action is struck and its action is dismissed with costs.
| (b) The statutory bars |
[50]While not necessary for me to do so, I will deal very briefly with the defendants and Pfizer's issues related to the existence of the statutory bars contained in sections 5 and 6 of the WTO Agreement Implementation Act. Notwithstanding the able arguments of counsel for Pfizer, there can be no doubt, in my view, the declaration which Pfizer seeks in plain terms, is to enforce or determine a right or obligation that arises solely from or by virtue of the WTO Agreement. Simply put, Pfizer seeks to enforce what it claims to be a right to a patent term of 20 years from the date of its N815 patent application, a right which is said to arise from the TRIPS Agreement which is part of the WTO Agreement. Pfizer argued that the declaration sought flowed from the WTO Agreement Implementation Act itself and not through the Agreement. I see no merit in this argument.
[51]Pfizer, through an amendment to its statement of claim, says that these sections are unconstitutional and to that extent are invalid, inoperable or inapplicable based on the rule of law and paragraph 2(e) of the Canadian Bill of Rights [R.S.C., 1985, Appendix III].
[52]Provisions analogous to sections 5 and 6 of the WTO Agreement Implementation Act are found in other federal statutes implementing international trade agreements. A few examples are appropriate.
[53]The Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, s. 5, provides, under a marginal note entitled "Prohibition of private cause of action", the following:
5. No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of Part I, or any regulation made under Part I, or the Agreement.
[54]The North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, contains the following provision in section 6:
6. (1) No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of Part I or any order or regulation made under Part I.
(2) Subject to Section B of Chapter Eleven of the Agreement, no person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of the Agreement.
[55]The true purpose of sections 5 and 6 of the WTO Agreement Implementation Act is evident as are similar provisions in the other implementation statutes referred to above. What Parliament is saying is that these international trade agreements are matters of public law concerning public rights, rights affecting Canada as a sovereign state. They are not matters of private economic or commercial rights giving rise to causes of action and legal proceedings. These sections do not eliminate any private rights; they do not extinguish rights; Parliament is simply saying no such rights arise.
[56]Parliament's concern relates to the very nature of international trade agreements between sovereign states and the mechanisms for dispute settlement and the enforcement of panel or arbitration rulings.
[57]The WTO Agreement provides for such mechanisms. Parliament did not want private parties except where it may be appropriate, to initiate private actions which would disrupt or adversely affect the agreed to equilibrium for dispute settlement.
[58]Taken in this sense, these sections do not constitute a denial of access to the courts.
| (c) Rule of Law |
[59]In Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at pages 257-261, the Supreme Court of Canada described in eloquent terms the meaning of the rule of law in our constitutional structure. The rule of law requires that all government action comply with the Constitution.
[60]The Saskatchewan Court of Appeal in Bacon v. Saskatchewan Crop Insurance Corp., [1999] S.J. No. 302 (QL) had the opportunity to consider the rule of law in the context of a legislative provision [The Farm Income Insurance Legislation Amendment Act, 1992, S.S. 1992, c. 51, s. 13.2(1)] which provided that "No action or proceeding lies or shall be instituted or continued against the Crown or a Crown agent based on any cause of action arising from".
[61]Bacon alleged the legislative requirement infringed the rule of law because it shielded government action. Wakeling J.A. carefully analyzed the context of the rule of law and concluded that its scope was not intended to impugn on the ability of the Saskatchewan Legislature to enact the legislation in question. I adopt the reasoning of the Saskatchewan Court of Appeal. The noble status of rule of law cannot be interpreted as a sword to strike down sections 5 and 6 of the WTO Agreement Implementation Act.
| (d) Paragraph 2(e) of the Canadian Bill of Rights |
[62]I fail to see how paragraph 2(e) of the Canadian Bill of Rights has any application here. Paragraph 2(e) provides that "no law of Canada shall be construed or applied so as to . . . deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations". I agree with the defendants that paragraph 2(e ) does not confer the kind of substantive rights claimed here. (See Duke v. The Queen, [1972] S.C.R. 917, at page 923.)
| (c) The Injunction Remedy |
[63]The conclusion I have reached in this matter does not require that I deal with the defendants' ground relating to the jurisdiction of this Court to issue an injunction against the Minister only by way of judicial review.
CONCLUSION
[64]Pfizer's statement of claim, dated April 15, 1999, as amended on June 16, 1999, is struck out in its entirety and its action is dismissed with costs.