Celgene Corp. v. Canada (Attorney General)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Evans, Sharlow and Ryer, JJ.A.
• Citation: 2009 FCA 378,(2009), 398 N.R. 233 (FCA)
• Date: 01 December 2009
• Subject Matter: TRADE REGULATION

Celgene Corp. v. Can. (A.G.) (2009), 398 N.R. 233 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. JA.029

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

(A-177-09; 2009 FCA 378)

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

Federal Court of Appeal

Evans, Sharlow and Ryer, JJ.A.

December 23, 2009.

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, allowed the appeal, set aside the decision of the Federal Court and dismissed Celgene's application for judicial review.

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 - Thalomid was packed in Celgene's facilities in New Jersey and was shipped directly to the doctor in Canada - Celgene prepared its invoice in New Jersey - Payment was to be made in U.S. dollars and couriered or mailed to Celgene in the United States - No Canadian taxes were paid on these transactions and all such shipments had United States packaging and labeling - The drug was never to be redistributed in Canada and any unused portions had be returned for proper disposal to Celgene's Product Returns facility located in Pennsylvania - 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 applications judge allowed the application - The Federal Court of Appeal set aside the applications judge's decision and dismissed the application for judicial review - The purpose of the scheme, created by ss. 79 to 103 and administered by the Board, was to protect consumers in Canada (or their insurers) from being charged excessive prices for patented medicines - To interpret these consumer protection provisions as not including patients whose treatment required medicines imported under an SAP authorization was contrary to the statutory objectives - See paragraphs 27 to 59.

Words and Phrases

Sold in any market in Canada - The Federal Court of Appeal discussed the meaning of this phrase as used in s. 80(1)(b) of the Patent Act, R.S.C. 1985, c. P-4 - See paragraphs 27 to 59.

Cases Noticed:

Minister of National Revenue (Customs and Excise) v. Mattel Canada Inc., [2001] 2 S.C.R. 100; 270 N.R. 153; 2001 SCC 36, refd to. [para. 25].

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. 27].

Public Service Alliance of Canada v. Canadian Federal Pilots Association et al. (2009), 392 N.R. 128; 2009 FCA 223, refd to. [para. 28].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [paras. 36, 62].

Dole Refrigerating Products Ltd. v. Canadian Ice Machine Co. et al. (1957), 28 C.P.R. 32 (Ex. Ct.), refd to. [para. 41].

Domco Industries Ltd. v. Mannington Mills Inc. and Congoleum Corp. (1990), 107 N.R. 198; 29 C.P.R.(3d) 481 (F.C.A.), refd to. [para. 41].

Pfizer Canada Inc. v. Canada (Attorney General) (2009), 347 F.T.R. 196; 2009 FC 719, refd to. [para. 42].

Proprio Direct Inc. v. Association des courtiers et agents immobiliers du Québec et al. (2008), 375 N.R. 1; 2008 SCC 32, refd to. [para. 46].

Statutes Noticed:

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

Counsel:

Christopher Rupar, for the appellant;

William Vanveen, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Gowling Lafleur Henderson LLP, Ottawa, Ontario, for the respondent.

This appeal was heard on December 1, 2009, at Ottawa, Ontario, by Evans, Sharlow and Ryer, JJ.A., of the Federal Court of Appeal. The judgment of the Court of Appeal was delivered on December 23, 2009, and included the following opinions:

Evans, J.A. (Sharlow, J.A., concurring) - see paragraphs 1 to 59;

Ryer, J.A., dissenting - see paragraphs 60 to 68.