Federal Court Decisions

Date: 20070223

Docket: T-2188-06

Citation: 2007 FC 213

BETWEEN:

SANOFI-AVENTIS CANADA INC.

Applicant

and

MINISTER OF HEALTH,

THE ATTORNEY GENERAL OF CANADA

and NOVOPHARM LIMITED

Respondents

REASONS FOR ORDER

PHELAN J.

[1]               These are the reasons for my decision rendered orally on January 29, 2007 dismissing Novopharm Limited’s (Novopharm) motion to strike a judicial review application filed by Sanofi-Aventis Canada Inc. (Sanofi-Aventis).

[2]               Sanofi-Aventis brought a judicial review application in respect of a letter from an official of the Minister of Health to Novopharm. Sanofi-Aventis alleges that this letter is a decision - Novopharm argues that it is not.

[3]               The letter advises Novopharm that in its Notice of Compliance (NOC) proceedings, it does not have to address the 387 and 549 Patents. These patents are said to be licensed to Sanofi-Aventis. Novopharm claims that Sanofi-Aventis has no standing to bring a judicial review; that the judicial review is premature; that the letter is not a decision; that Sanofi-Aventis has other remedies; that to allow Sanofi-Aventis to proceed will result in a proliferation of litigation. Ultimately, Novopharm says that the judicial review is improper and bereft of any chance of success.

[4]               The power to strike and the test for such striking is set forth in a number of cases including David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), [1995] 1 F.C. 588 where the Court of Appeal held that to strike an application for judicial review, the application would have to be “so clearly improper as to be bereft of any possibility of success”.

[5]               At issue in this judicial review is, at least in part, the application of the Supreme Court’s decision in AstraZeneca Canada Inc. v. Canada (Minister of Health), 2006 SCC 49, particularly as to the Minister’s identification of the patents which were to be in issue in the NOC proceedings. Therefore, the issues in this matter are not such as to be “bereft of any possibility of success”.

[6]               The effect of the Minister’s letter not only identified the two patents to be in issue in regards to Novopharm but also the two patents of Sanofi-Aventis not in issue and for which Sanofi-Aventis will not have the benefit for NOC purposes.

[7]               The question of Sanofi-Aventis’ standing in respect of the letter is best left to the hearing. If this letter is not a decision, the determination of that question is more properly to be made by the hearing judge. If it is not a decision, one wonders why Novopharm in a separate proceeding has sought judicial review of that same letter.

[8]               As to the other issues raised by Novopharm on this motion to strike, including whether judicial review should be available in the context of NOC proceedings, these should also be left to the hearing judge.

[9]               For these reasons, the motion was dismissed with costs payable forthwith.

“Michael L. Phelan”

Ottawa, Ontario

February 23, 2007

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-2188-06

STYLE OF CAUSE:                          SANOFI-AVENTIS CANADA INC.

                                                            and

                                                            THE MINISTER OF HEALTH, THE ATTORNEY GENERAL OF CANADA and NOVOPHARM LIMITED

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      January 29, 2007

REASONS FOR ORDER:               Phelan, J.

DATED:                                             February 23, 2007

APPEARANCES:

SOLICITORS OF RECORD: