Sandoz Canada Inc. v. Canada (Attorney General), (2014) 455 F.T.R. 232 (FC)

• Judge: O'Reilly, J.
• Court: Federal Court (Canada)
• Case Date: May 27, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 455 F.T.R. 232 (FC);2014 FC 501

Sandoz Can. Inc. v. Can. (A.G.) (2014), 455 F.T.R. 232 (FC)

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Temp. Cite: [2014] F.T.R. TBEd. MY.035

Sandoz Canada Inc. (applicant) v. Attorney General of Canada (respondent)

(T-1616-12; 2014 FC 501; 2014 CF 501)

Indexed As: Sandoz Canada Inc. v. Canada (Attorney General)

Federal Court

O'Reilly, J.

May 27, 2014.

Summary:

The Patented Medicines Prices Review Board concluded that Sandoz Canada Inc., a manufacturer of generic pharmaceuticals, came within the definition of a "patentee" under the Patent Act and, therefore, was subject to the Board's oversight in respect of patented medicines. Sandoz applied for judicial review.

The Federal Court allowed the application.

Constitutional Law - Topic 6281

Federal jurisdiction (s. 91) - Patents of invention and discovery - General - The Patented Medicines Prices Review Board concluded that Sandoz Canada Inc., a manufacturer of generic pharmaceuticals, came within the definition of a "patentee" under the Patent Act and, therefore, was subject to the Board's oversight in respect of patented medicines - Sandoz applied for judicial review, arguing that if it was subject to the Board's jurisdiction, then the relevant provisions of the Patent Act were unconstitutional as they encroached on provincial jurisdiction over property and civil rights (Constitution Act, 1867, s. 92(13)) - The Federal Court stated that "... the amendments giving the Board the power to address the pricing of patented medicines more directly through monetary remedies and penalties did not alter the basic purpose of the legislation or expand the Board's mandate. Therefore, I see no basis for departing from the conclusion reached in Manitoba Society of Seniors Inc. that the provisions of the Patent Act dealing with patented medicines, properly interpreted, fall within federal jurisdiction over patents of invention; they are constitutional" - See paragraphs 35 to 37.

Food and Drug Control - Topic 1102.1

Drugs - New and innovative drugs - Patentee defined - Sandoz Canada Inc., was a manufacturer or generic pharmaceuticals - Sandoz held no patents - Rather it was a wholly owned subsidiary authorized to enter the market by its parent companies without having to challenge any patents - The Patented Medicines Prices Review Board concluded that Sandoz came within the definition of a "patentee" under the Patent Act and, therefore, was subject to the Board's oversight in respect of patented medicines - Sandoz applied for judicial review - The Federal Court allowed the application - The court, taking into account the federal/ provincial division of powers, and interpreting the scope of the Act, held that Sandoz was not a "patentee" - Therefore, the Board had no power to order Sandoz to comply with the Act and Regulations - See paragraphs 14 to 34.

Food and Drug Control - Topic 1115

Drugs - New drugs - Judicial review - Scope of - [See Patents of Invention - Topic 8142 ].

Patents of Invention - Topic 8142

Practice - Judicial review - Scope of - The Patented Medicines Prices Review Board concluded that Sandoz Canada Inc., a manufacturer of generic pharmaceuticals, came within the definition of a "patentee" under the Patent Act and, therefore, was subject to the Board's oversight in respect of patented medicines - Sandoz applied for judicial review raising statutory interpretation and constitutional issues - The Federal Court held that the standard of review on the question of whether Sandoz was a "patentee" was reasonableness and with respect to the constitutional questions was correctness - See paragraphs 14 to 16.

Cases Noticed:

ICN Pharmaceuticals Inc. et al. v. Patented Medicine Prices Review Board et al., [1997] 1 F.C. 32; 200 N.R. 376 (F.C.A.), refd to. [para. 7].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 7].

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. 18].

Shire Biochem Inc. v. Canada (Attorney General) (2007), 321 F.T.R. 126; 2007 FC 1316, refd to. [para. 20].

Sanofi Pasteur Ltd. v. Canada (Attorney General) (2011), 393 F.T.R. 294; 2011 FC 859, refd to. [para. 20].

Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al., (2013), 451 N.R. 80; 312 O.A.C. 169; 2013 SCC 64, refd to. [para. 21].

Katz Group Canada Inc. v. Ontario (Minister of Health and Long-Term Care) - see Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al.

Manitoba Society of Seniors Inc. v. Canada (Attorney General) (1991), 70 Man.R.(2d) 141; 77 D.L.R.(4th) 485 (Q.B.), affd. (1992), 81 Man.R.(2d) 159; 30 W.A.C. 159; 96 D.L.R.(4th) 606 (C.A.), folld. [para. 21].

Pfizer Canada Inc. v. Canada (Attorney General) (2009), 347 F.T.R. 196; 2009 FC 719, refd to. [para. 23].

Statutes Noticed:

Constitution Act, 1867, sect. 92(13) [para. 2].

Patent Act, R.S.C. 1985, c. P-4, sect. 2, sect. 79(1) [para. 6].

Counsel:

Gavin MacKenzie and Neil Fineberg, for the applicant;

Robert MacKinnon and Craig Collins-Williams, for the respondent.

Solicitors of Record:

Heenan Blaikie LLP, Lawyers/Patent & Trademark Agents, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Toronto, Ontario, on November 19 and 12, 2013, before O'Reilly, J., of the Federal Court, who delivered the following decision on May 27, 2014.