AB Hassle et al. v. Apotex Inc. et al., (2008) 384 N.R. 372 (FCA)

• Judge: Richard, C.J., Blais and Sharlow, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 21, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 384 N.R. 372 (FCA);2008 FCA 416

AB Hassle v. Apotex Inc. (2008), 384 N.R. 372 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. FE.007

Apotex Inc. (appellant) v. AB Hassle, AstraZeneca AB and AstraZeneca Canada Inc. and The Minister of Health (respondents)

(A-77-08; 2008 FCA 416)

Indexed As: AB Hassle et al. v. Apotex Inc. et al.

Federal Court of Appeal

Richard, C.J., Blais and Sharlow, JJ.A.

December 22, 2008.

Summary:

Apotex Inc. moved to set aside an order of Justice Kelen in Federal Court File T-1747-00 (AB Hassle et al. v. Apotex, 223 F.T.R. 43; 2002 FCT 931) (Case 1) and the order of Justice Layden-Stevenson in Federal Court File T-1878-02 (AB Hassle et al v. Apotex, 271 F.T.R. 30; 2005 FC 234) (Case 2). Both of the orders had been upheld on appeal (312 N.R. 288; 2003 FCA 409 and 350 N.R. 219; 2006 FCA 51, respectively). Apotex argued that the two orders should be set aside because they could not stand with certain conclusions reached by Justice Layden-Stevenson in a more recent case, Federal Court File T-766-03 (Astrazeneca et al. v. Apotex, 285 F.T.R. 258; 2006 FC 7, appeal dismissed, 371 N.R. 190; 2007 FCA 327) (Case 3). All the proceedings were brought under the provisions of the Patented Medicines (Notice of Compliance) Regulations and concerned a drug containing the medicine known as omeprazole.

The Federal Court, per Justice Hughes, in a decision reported (2008), 335 F.T.R. 45; 2008 FC 184, dismissed both of Apotex's motions. Apotex appealed.

The Federal Court of Appeal dismissed the appeal.

Courts - Topic 4077

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Setting aside judgments or orders - [See all Food and Drug Control - Topic 1108.3 ].

Food and Drug Control - Topic 1108.3

Drugs - New drugs - Notice of compliance - Prohibition order - Setting aside - The Federal Court of Appeal stated that the Federal Court had the jurisdiction to set aside its own judgments in the circumstances stated in rule 399 of the Federal Courts Rules - However, that jurisdiction was rarely exercised because there was a significant public interest in the finality of judgments and the integrity of the judicial process - The court stated that "It has also been said that the Federal Court has the inherent jurisdiction to vacate a prohibition order issued under the NOC Regulations [Patented Medicines (Notice of Compliance) Regulations] if changed circumstances demonstrate that the order should cease to have effect..." - See paragraphs 17 to 20.

Food and Drug Control - Topic 1108.3

Drugs - New drugs - Notice of compliance - Prohibition order - Setting aside - A generic drug manufacturer (Apotex) moved to set aside two Federal Court decisions (Case 1 and Case 2) which resulted in the issuance of prohibition orders under the Patented Medicines (Notice of Compliance) Regulations - Hughes, J., a motions judge of the Federal Court, dismissed the motion - The generic drug manufacturer appealed - The Federal Court of Appeal dismissed the appeal - The court noted that Justice Hughes declined to exercise his discretion to set aside the orders in Case 1 or Case 2 because he understood that Apotex was attempting to reverse the effects of its unsuccessful litigation strategies in Case 1 and Case 2 by arguing that those cases might have been decided differently if Apotex had conducted itself differently - The court stated that in those circumstances, there was no error of law or any other basis upon which the court should intervene in the decision of Justice Hughes to dismiss the motions - See paragraphs 1 to 30.

Food and Drug Control - Topic 1108.3

Drugs - New drugs - Notice of compliance - Prohibition order - Setting aside - A generic drug manufacturer moved to set aside two Federal Court decisions which resulted in the issuance of prohibition orders under the Patented Medicines (Notice of Compliance) Regulations - A motions judge of the Federal Court dismissed the motion - The generic drug manufacturer appealed - The Federal Court of Appeal discussed the standard of review - The court noted that this case involved an appeal of the discretionary decision of a judge on a motion to set aside a prohibition order on the basis of rule 399 or the Federal Court's inherent continuing jurisdiction over injunctions and similar orders - The appeal court stated that it would not reverse such a discretionary decision in the absence of an error of law or a wrongful exercise of discretion in that no weight, or no sufficient weight, was given to relevant considerations, or consideration was given to irrelevant factors - See paragraph 21.

Practice - Topic 6187

Judgments and orders - Setting aside judgments - Grounds for - [See all Food and Drug Control - Topic 1108.3 ].

Practice - Topic 6250

Judgments and orders - Setting aside orders - Jurisdiction - [See all Food and Drug Control - Topic 1108.3 ].

Practice - Topic 6252

Judgments and orders - Setting aside orders - Grounds for - [See all Food and Drug Control - Topic 1108.3 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See third Food and Drug Control - Topic 1108.3 ].

Cases Noticed:

Hoffmann-La Roche Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1999), 167 F.T.R. 111 (T.D.), refd to. [para. 15].

Hoffmann-La Roche Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1996), 109 F.T.R. 216; 67 C.P.R.(3d) 484 (T.D.), affd. (1996), 205 N.R. 331; 70 C.P.R.(3d) 206 (F.C.A.), leave to appeal dismissed (1997), 223 N.R. 230 (S.C.C.), refd to. [para. 19].

Apotex Inc. v. Syntex Pharmaceuticals International Ltd. et al. (1999), 166 F.T.R. 161; 1 C.P.R.(4th) 22 (T.D.), refd to. [para. 19].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 21].

Elders Grain Co. et al. v. Ship Ralph Misener et al., [2005] 3 F.C.R. 367; 334 N.R. 1 (F.C.A.), refd to. [para. 21].

Statutes Noticed:

Federal Courts Rules, 1998, rule 399(2)(a) [para. 17].

Authors and Works Noticed:

Spry, Ian C.F., The Principles of Equitable Remedies (5th Ed. 1997), p. 382 [para. 20].

Counsel:

Andrew R. Brodkin, for the appellant;

Gunars A. Gaikis and Yoon Kang, for the respondent.

Solicitors of Record:

Goodmans LLP, Toronto, Ontario, for the appellant;

Smart & Biggar, Toronto, Ontario, for the respondent.

This appeal was heard at Ottawa, Ontario, on October 21, 2008, before Richard, C.J., Blais, and Sharlow, JJ.A., of the Federal Court of Appeal. Sharlow, J.A., delivered the following reasons for judgment on December 22, 2008.