Date: 19990412
Docket: T-601-99
BETWEEN:
FOURNIER PHARMA INC. and
FOURNIER INDUSTRIE ET SANTÉ
Plaintiffs
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is a motion for an interim injunction restraining the Defendant, Apotex Inc. ("Apotex"), from entering the market for micronized fenofibrate in Canada. The Plaintiff, Fournier Pharma Inc. ("Fournier"), currently markets micronized fenofibrate, a drug used to treat high cholesterol, in an orange, hard-gelatin capsule, under the name "Lipidil Micro".
[2] On March 29, 1999, Apotex announced that "Apo-Feno Micro", "an alternative to Lipidil Micro", also to be marketed in an orange, hard-gelatin capsule, will be available mid-April 1999.
[3] It has been said many times by this Court, that interim injunctions are a rare and exceptional remedy.1 As stated in The Kun Shoulder Rest:
| The granting of interim injunctions is provided for in sub-Rule 469(2) of the Rules [now Rule 374]. It marks a clear departure from the procedural requirements which are applied to standard applications for interlocutory injunction. Both the Rules and the particular nature of an application for an interim injunction require that the applicant demonstrate an urgency of such importance that there is no alternate way to proceed in order to counter the harm that might or is actually occurring.1 |
In addition to establishing the urgency of the injunction, the applicant must also satisfy the standard three part test for an injunction.1 As the urgency is often directly linked to the irreparable harm, I will determine if the Plaintiffs meet the three part test, based on the evidence before me, before assessing the urgency of the matter.
[4] The threshold to establish a serious issue for trial is low.1 However, there must be some evidence led by the moving party to demonstrate that a serious issue exists. The Statement of Claim contains allegations that Apotex is infringing a trademark owned by the Plaintiffs, in relation to the pending release of Apo-Feno Micro. However, the evidence before me on this motion is inconclusive. I am inclined to cite from the decision of Winkler J. in Unitel Communications v. Bell Canada:
| The evidence before me is very thin soup, so thin in fact as to not disclose a serious issue to be tried.1 |
[5] I could find no evidence that Apo-Feno Micro, in its proposed form, would be confused with Lipidil Micro. There was no evidence before me to indicate that the shape, colour and size of the Lipidil Micro capsule have acquired a reputation associated with the product, nor was there any evidence that the general public would be confused. Similarly, the Plaintiffs argued that Apotex"s use of the word "micro" in its brand name was either confusing or misleading; yet there was no evidence presented to support this allegation. In my opinion, the Plaintiffs have failed to provide evidence that there is a serious issue to be tried.
[6] The second part of the test for an injunction is to demonstrate that the moving party will suffer irreparable harm. I agree with my colleague Dubé J., who stated in Merck Frosst Canada Inc. v. Canada (Minister of Health), that although the threshold for establishing a serious issue will be low, the threshold for showing irreparable harm will be much higher.
| At this stage of the proceedings, and more so where the applicant is merely seeking a ten day injunction, it is not for the motion judge to go very deeply into the merits of the case. Thus, the threshold of serious issue is very low: the motion judge merely has to decide whether or not there is some merit in the sense that it is not frivolous. However, the threshold of irreparable harm is very high. An injunction is an extraordinary remedy. It is discretionary. The Court ought not to grant it merely to favour one side at the expense of another in what is obviously an ongoing battle between two producers on the prescription drug market.1 |
[7] In addition, I note that the Federal Court of Appeal has stated, in Centre Ice Ltd. v. National Hockey League, that the evidence of irreparable harm must be "clear and not speculative".1
[8] I find that the Plaintiffs have not established that they will suffer irreparable harm, within the next fourteen days, if the interim injunction is not granted. As stated by Dubé J., the relevant period is only that covered by the interim injunction, which has since been extended by the new rules from ten to fourteen days.1
| It must be borne in mind that the interim injunction applied for is merely a ten day injunction and not an interlocutory injunction lasting up to the trial of the issue. Thus, the applicant Merck must show that it will suffer irreparable harm during a ten day period [now fourteen days].1 |
[9] The Plaintiffs claim that the entry of Apotex into the micronized fenofibrate market will result in employees of Fournier being laid off or resigning. The only evidence to this effect is that of the president, Graham Jobson, who states in his affidavit that decreased revenues will result in layoffs and that:
| the knowledge that a generic product was about to go on the market or was already on the market would certainly result in employees leaving Fournier in anticipation of layoffs.1 |
This is speculative. In fact, with respect to decreased revenues, the evidence indicates that Fournier"s revenues are more likely to be reduced over a period of several months, and that no significant reduction would occur within the next fourteen days.1 With respect to the employees, the Plaintiffs have failed to satisfy me that, with the knowledge of the pending motion for an interlocutory injunction, employees will leave if an interim injunction is not granted. As stated by Mackay J. in Merck & Co., Inc. et al v. Apotex Inc:
| These concerns are merely speculative for another reason, in my view. At best they relate to long-term implications of Apotex's entry into the market, not to effects to be realized in the interim pending trial, if the parties are indeed determined to bring this action to trial without delay.1 |
[10] The Plaintiffs have also suggested that the introduction of Apo-Feno Micro onto the market will force Fournier to market its own generic, through its licencee Pharmascience. They argue that once Pharmascience has entered the market, the withdrawal of the licence by Fournier, should the interlocutory injunction be granted subsequently, would cause considerable damage to Fournier"s reputation.
[11] Mr. Jobson affirms that Fournier will not licence Pharmascience unless it is forced to do so, to mitigate its losses in the event that Apotex, or some other company, enters the market with a generic version of micronized fenofibrate.1 This statement does not satisfy me that Fournier will necessarily authorize Pharmascience to enter the market within the next fourteen days, as a direct result of Apotex"s entry into the market.
[12] Given that the Plaintiffs have not provided sufficient evidence to demonstrate that there are serious issues to be tried and that there is insufficient evidence to enable me to infer imminent irreparable harm, there clearly cannot be any urgency in this case. I am of the opinion that this is not an appropriate case in which to grant an interim injunction.
[13] This decision is confined to the facts and evidence before me on the motion for an interim injunction and should in no way influence the outcome of the pending motion for an interlocutory injunction.
CONCLUSION
[14] The motion for an interim injunction is dismissed with costs.
[15] I also order that the pending interlocutory motion be heard on an expedited basis, as per the following timeline, to which the parties have consented:
Apotex"s evidence is to be served and filed by April 27,1999;
| Cross-examination of Fournier"s affiants on April 28, 29, 30, 1999 (as needed) in Montreal (Philippe Regineault to be cross-examined by telephone conference call); |
| Cross-examination of Apotex"s affiants on May 3, 4, 5, 1999 (as needed) in Toronto; |
| Factums of both Fournier and Apotex to be served and filed by May 13, 1999. |
Danièle Tremblay-Lamer
JUDGE
MONTREAL, QUEBEC
April 12, 1999.
[16]
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990412
Docket: T-601-99
BETWEEN:
FOURNIER PHARMA INC. and
FOURNIER INDUSTRIE ET SANTÉ
Plaintiffs
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-601-99
STYLE OF CAUSE: FOURNIER PHARMA INC. and
| FOURNIER INDUSTIE ET SANTÉ |
Plaintiffs
AND
| APOTEX INC. |
Defendant
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING: April 8, 1999
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
DATED: April 12, 1999
APPEARANCES:
Mr. Ronald Dimock for the Plaintiffs
Mr. Richard Naiberg for the Defendant
SOLICITORS OF RECORD:
DIMOCK STRATTON CLARIZIO
Toronto (Ontario) for the Plaintiffs
GOODMAN PHILLIPS & VINEBERG
Toronto (Ontario) for the Defendant
[17]
__________________Searle Canada Inc. v. Novopharm Ltd. (1994), 54 C.P.R. (3d) 213 at 231 (F.C.A.).
The Kun Shoulder Rest Inc. v. Joseph Kun Violin and Bow Maker Inc. (18 June 1997), T-118-97 at para 24 (F.C.T.D.).
RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 at 334.
(1994), 56 C.P.R. (3d) 232 at 236 (Ont. Gen. Div.).
(1997), 137 F.T.R. 243 at 247 (T.D.).
(1994), 53 C.P.R. (3d) 34 at 52 (F.C.A.).
Federal Court Rules, 1998, SOR/98-106, Rule 374.
Merck Frosst, supra note 6 at 245.
Affidavit of Graham Stirling Jobson (sworn 1 April 1999) at para 38.
Affidavit of Tom Brogan (sworn 1 April 1999) at para 39 and Exhibits "A" and "B" and "C".