Date: 20031107
Docket: T-1800-02
Citation: 2003 FC 1316
BETWEEN:
FOURNIER PHARMA INC. and
LABORATORIES FOURNIER S.A.
Applicants
- and -
THE MINISTER OF HEALTH and
APOTEX INC.
Respondents
REASONS FOR ORDER
PINARD J.:
[1] This is an appeal by the applicants of a discretionary decision dismissing for delay their motion brought pursuant to subsection 6(7) of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (the "Regulations"), a decision which was made by Prothonotary Lafrenière in the exercise of his powers as the Case Management Prothonotary assigned to these proceedings.
[2] Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the impugned decision and to consider exercising my own discretion differently for the following reasons:
1. the applicants have failed to demonstrate that the Prothonotary's decision is "clearly wrong", in that it was based upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 454 (C.A.)); furthermore,
2. the applicants have manifestly failed to meet the heavy burden of demonstrating that the Prothonotary's interlocutory decision represents the "clearest case of a misuse of judicial discretion" (see Sawridge Band v. Canada, [2002] 2 F.C. 346 at 354 (C.A.)).
[3] In the context of a similar production motion brought pursuant to subsection 6(7) of the Regulations, in Biovail Corporation v. Canada (Minister of National Health) (2002), 22 C.P.R. (4th) 503 at 515, this Court (Noël J.) also dismissed for delay an appeal from a decision of a Prothonotary on the basis that the Prothonotary "exercised his discretion in a rightful manner and based his decision on the evidence before him". This decision was recently confirmed by the Federal Court of Appeal on October 31, 2003 (2003 FCA 406).
[4] Consequently, the appeal is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
November 7, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1800-02
STYLE OF CAUSE: FOURNIER PHARMA INC. and LABORATORIES FOURNIER S.A. v. THE MINISTER OF HEALTH and APOTEX INC.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 6, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 7, 2003
APPEARANCES:
Mr. David M. Reive
Ms. Angela M. Furlanetto FOR THE APPLICANTS
Mr. Andrew R. Brodkin
Ms. Nathalie Butterfield FOR THE RESPONDENT (APOTEX INC.)
SOLICITORS OF RECORD:
DIMOCK STRATTON CLARIZIO LLP FOR THE APPLICANTS
Toronto, Ontario
GOODMANS LLP FOR THE RESPONDENT (APOTEX INC.)
Toronto, Ontario