Celgene Corp. v. Canada (Attorney General), [2011] N.R. TBEd. JA.001

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 2010
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. JA.001;2011 SCC 1;327 DLR (4th) 513;410 NR 127;[2011] 1 SCR 3;[2011] SCJ No 1 (QL);89 CPR (4th) 1

Celgene Corp. v. Can. (A.G.) (SCC) - Patented medicine prices review board - Scope of price-regulating and remedial authority

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. JA.001

Celgene Corporation (appellant) v. Attorney General of Canada (respondent)

(33579; 2011 SCC 1; 2011 CSC 1)

Indexed As: Celgene Corp. v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

January 20, 2011.

Summary:

Celgene Corp. applied for judicial review of a decision of the Patented Medicine Prices Review Board that it had jurisdiction to require Celgene to provide pricing information concerning its sales of Thalomid in the United States.

The Federal Court, in a decision reported at 344 F.T.R. 45, allowed the application and set aside the Board's decision. The Board did not have the jurisdiction to regulate Celgene's sale of Thalomid in the United States. The Attorney General of Canada appealed.

The Federal Court of Appeal, Ryer, J.A., dissenting, in a decision reported at 398 N.R. 233, allowed the appeal, set aside the decision of the Federal Court and dismissed Celgene's application for judicial review. Celgene appealed.

The Supreme Court of Canada dismissed the appeal.

Trade Regulation - Topic 8522

Price and wage regulation - Patented medicine - Jurisdiction or powers of board - Since 1995, Celgene Corp., a United States based corporation, had made Thalomid available under Health Canada's Special Access Plan (SAP) to patients who resided in Canada through their doctor's request - Celgene applied for judicial review of a decision of the Patented Medicine Prices Review Board that it had jurisdiction to require Celgene to provide pricing information concerning its sales of Thalomid - At issue was the correct interpretation of s. 80(1)(b) of the Patent Act, which provided that "a patentee of an invention pertaining to a medicine shall, as required by and in accordance with the regulations, provide the Board with such information and documents as the regulations may specify respecting ... (b) the price at which the medicine is being or has been sold in any market in Canada and elsewhere" - The Supreme Court of Canada affirmed the dismissal of the application for judicial review -  The Board was responsible for monitoring and regulating the prices of patented medicines - The Board found that its mandate included its responsibility for ensuring that the monopoly that accompanies the granting of a patent was not abused to the financial detriment of Canadian patients and their insurers - The Board therefore concluded that in order to comply with that mandate, sales "in any market in Canada" for the purposes of the relevant provisions, should be interpreted to "include sales of medicines that are regulated by the public laws of Canada, that will be delivered in Canada, to be dispensed in Canada, and where, in particular, the cost of the medicine will be borne by Canadians - patients or taxpayers, as the case may be" - All of these prerequisites were satisfied in the case of Celgene's sales of Thalomid to Canadians through the SAP - The legislative context and the consumer protection purpose of ss. 80(1)(b), 83(1) and 85 of the Patent Act supported the Board's conclusion that, based on the language of those provisions, it had authority over Celgene's sales of Thalomid to Canadians through the SAP.

Words and Phrases

Sold in any market in Canada - The Supreme Court of Canada discussed the meaning of this phrase as used in s. 80(1)(b) of the Patent Act, R.S.C. 1985, c. P-4.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Public Service Alliance of Canada v. Canadian Federal Pilots Association et al., [2010] 3 F.C.R. 219; 392 N.R. 128; 2009 FCA 223, refd to. [para. 13].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 21].

Minister of National Revenue (Customs and Excise) v. Mattel Canada Inc., [2001] 2 S.C.R. 100; 270 N.R. 153; 2001 SCC 36, dist. [para. 22].

Dole Refrigerating Products Ltd. v. Canadian Ice Machine Co. and Americo Contact Plate Freezers Inc. (1957), 28 C.P.R. 32 (Ex. Ct.), refd to. [para. 24].

Domco Industries Ltd. v. Mannington Mills Inc. and Congoleum Corp. (1990), 107 N.R. 198; 29 C.P.R.(3d) 481 (F.C.A.), leave to appeal refused [1990] 2 S.C.R. vi; 127 N.R. 239, refd to. [para. 24].

ICN Pharmaceuticals Inc. et al. v. Patented Medicine Prices Review Board et al. (1996), 108 F.T.R. 190 (T.D.), affd. [1997] 1 F.C. 32; 200 N.R. 376 (F.C.A.), refd to. [para. 28].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 34].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 34].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Statutes Noticed:

Patent Act, R.S.C. 1985, c. P-4, sect. 80(1)(b) [para. 17].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 1, 2nd Sess., 33rd Parliament (November 20, 1986), pp. 1369 to 1373 [para. 26].

Canada, Hansard, House of Commons Debates, vol. 12, 3rd Sess., 34th Parliament (December 10, 1992), pp. 14998, 15001 [para. 27].

Canada, Health Canada, Guidance Document for Industry and Practitioners: Special Access Programme for Drugs (2008), p. 1 [para. 3].

Hansard - see Canada, Hansard, House of Commons Debates.

Counsel:

William Vanveen and Henry S. Brown, Q.C., for the appellant;

Christopher Rupar and Jan Brongers, for the respondent.

Solicitors of Record:

Gowling Lafleur Henderson, Ottawa, Ontario, for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on November 10, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Abella, J., on January 20, 2011.