Sanofi Pasteur Ltd. v. Canada (Attorney General), 2011 FC 859

• Judge: Gauthier, J.
• Court: Federal Court (Canada)
• Case Date: July 08, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 859;(2011), 393 F.T.R. 294 (FC)

Sanofi Pasteur Ltd. v. Can. (A.G.) (2011), 393 F.T.R. 294 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.056

Sanofi Pasteur Limited (applicant) v. Attorney General of Canada (respondent)

(T-83-10; 2011 FC 859)

Indexed As: Sanofi Pasteur Ltd. v. Canada (Attorney General)

Federal Court

Gauthier, J.

July 8, 2011.

Summary:

As a remedy for charging prices in excess of the "maximum non-excessive price" (MNE) for two drugs during the period from 2002 to 2006, the Patented Medicines Prices Review Board ordered Sanofi Pasteur Ltd., under s. 83(2) of the Patent Act, to pay $2.5 million to Canada. Sanofi had argued, inter alia, that the alleged excessive revenues earned in 2002 to 2006 had been offset when Sanofi reduced its price below the MNE in 2007 and 2008. Sanofi applied for judicial review.

The Federal Court allowed the application, setting the order aside and remitting the matter for redetermination.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See second Trade Regulation - Topic 8524 ].

Trade Regulation - Topic 8522

Price and wage regulation - Patented medicine - Jurisdiction or powers of board - [See both Trade Regulation - Topic 8524 ].

Trade Regulation - Topic 8524

Price and wage regulation - Patented medicine - Excessive pricing - As a remedy for charging prices in excess of the "maximum non-excessive price" (MNE) for two drugs during the period from 2002 to 2006, the Patented Medicines Prices Review Board ordered Sanofi Pasteur Ltd., under s. 83(2) of the Patent Act, to pay $2.5 million to Canada - Sanofi had argued, inter alia, that the alleged excessive revenues earned in 2002 to 2006 had been offset when Sanofi reduced its price below the MNE in 2007 and 2008 - Sanofi applied for judicial review, asserting, inter alia, that the Board had exceeded its jurisdiction by imposing a penalty on Sanofi - The Federal Court rejected this argument - Having noted that by characterizing the decision to impose a price reduction or a payment as an excess of jurisdiction, Sanofi could argue that the standard of review was correctness, the court agreed with the Crown that there was only one issue, which was whether or not the decision was reasonable because under that standard of review the court could deal with all of the issues raised by Sanofi - Here, the court disagreed with Sanofi that the Board's order was or ought to be considered a punitive award - See paragraphs 37 to 58.

Trade Regulation - Topic 8524

Price and wage regulation - Patented medicine - Excessive pricing - As a remedy for charging prices in excess of the "maximum non-excessive price" (MNE) for two drugs during the period from 2002 to 2006, the Patented Medicines Prices Review Board ordered Sanofi Pasteur Ltd., under s. 83(2) of the Patent Act, to pay $2.5 million to Canada - Sanofi had argued, inter alia, that the alleged excessive revenues earned in 2002 to 2006 had been offset when Sanofi reduced its price below the MNE in 2007 and 2008 - Sanofi applied for judicial review, asserting, inter alia, that the Board had exceeded its jurisdiction in that the order was based on pure speculation and conjecture - The Federal Court allowed the application - If the Board was truly directing itself to the issue of compensation under s. 83(2), the problem for the court was to determine how the relevant authorities dealt with the issue facing the Board and whether the Board's decision was a reasonable answer here - However, having examined the Board's decision, the court was unable to determine on what basis the Board had discarded Sanofi's argument that it had, either totally or in part, compensated for its excessive revenues - The court was not in a position to exercise its duty to review the legality of the Board's decision - The decision was not reasonable because it lacked transparency, intelligibility and justification - See paragraphs 59 to 76.

Trade Regulation - Topic 8528

Price and wage regulation - Patented medicine - Judicial review - Standard of review - [See first Trade Regulation - Topic 8524 ].

Cases Noticed:

Teva Neuroscience G.P.-S.E.N.C. v. Canada (Attorney General) (2009), 357 F.T.R. 35; 2009 FC 1155, refd to. [para. 5].

Pfizer Canada Inc. v. Canada (Attorney General) (2009), 347 F.T.R. 196; 2009 FC 719, refd to. [para. 17].

Celgene Corp. v. Canada (Attorney General) (2011), 410 N.R. 127; 2011 SCC 1, refd to. [para. 18].

Leo Pharma Inc. v. Canada (Attorney General) (2007), 310 F.T.R. 221; 2007 FC 306, refd to. [para. 29].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 37].

Thibeault v. Canada (Ministre des Pêches et Océans) (1996), 123 F.T.R. 35; 7 Admin. L.R.(3d) 70 (T.D.), refd to. [para. 47].

Matthews v. Canada (Attorney General) (1997), 118 F.T.R. 81; 43 Admin. L.R.(2d) 143 (T.D.), affd. (1999), 242 N.R. 181 (F.C.A.), refd to. [para. 47].

Hoechst Marion Roussel Canada v. Canada (Attorney General) (2005), 283 F.T.R. 278; 2005 FC 1552, refd to. [para. 59].

Thamotharem v. Canada (Minister of Citizenship and Immigration) (2007), 366 N.R. 301; 2007 FCA 198, refd to. [para. 60].

Waycobah First Nation v. Canada (Attorney General) (2010), 378 F.T.R. 262; 2010 FC 1188, refd to. [para. 60].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 60, footnote 23].

Mavi et al. v. Canada (Attorney General) et al. (2011), 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 67].

Vancouver International Airport Authority et al. v. Public Service Alliance of Canada (2010), 403 N.R. 363; 2010 FCA 158, refd to. [para. 71].

Holmes v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 383 F.T.R. 185; 2011 FC 112, refd to. [para. 71].

Counsel:

Sandra Forbes, for the applicant;

Gina Scarcella and Julie de Marco, for the respondent.

Solicitors of Record:

Davies Ward Phillips & Vineberg, LLP, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on February 16 and 17, 2011, by Gauthier, J., of the Federal Court, who delivered the following reasons for judgment on July 8, 2011.