Date: 20020515
Docket: T-462-02
Neutral citation: 2002 FCT 559
Montreal, Quebec, May 15, 2002
Present: Richard Morneau, Esq., Prothonotary
BETWEEN:
NOVARTIS PHARMACEUTICALS CANADA INC.
and
NOVARTIS AG
Applicants
and
RHOXALPHARMA INC.
and
THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
[1] This is a motion by Novartis Pharmaceuticals Canada Inc. and Novartis AG (Novartis) to compel Mr. Len Arsenault to answer a question which was objected to during his cross-examination on an affidavit filed in support of RhoxalPharma Inc.'s (RhoxalPharma) motion to dismiss the application of Novartis filed under the NOC Regulations.
[2] In support of its motion to dismiss, RhoxalPharma filed an affidavit of Mr. Len Arsenault. Mr. Arsenault attached to his affidavit the relevant patent, the Trial Division and Court of Appeal judgments on the 100 mg capsules, the NOAs on the 100 mg and the 25 mg-50 mg capsules and the Novartis' Notice of Application in the 25 mg-50 mg case.
[3] Mr. Arsenault was cross-examined on May 7, 2002. During this cross-examination, counsel for RhoxalPharma objected to the following question:
At the time that the Court of Appeal hearing took place, which was November 28, 2001, had RhoxalPharma filed a new drug submission in respect to Cyclosporine for the 25 mg. capsule?
[4] It would appear at this juncture that the issue to be determined on RhoxalPharma's motion to dismiss is whether RhoxalPharma is correct in arguing under section 6(5) of the NOC Regulations that Novartis' application for prohibition is a redundant proceeding.
[5] I do not believe that the timing of RhoxalPharma's submissions before the Minister is relevant to this issue. Accordingly, the instant motion is dismissed with costs.
Richard Morneau
Prothonotary
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date : 20020515
Docket : T-462-02
BETWEEN:
NOVARTIS PHARMACEUTICALS CANADA INC. and
NOVARTIS AG
Applicants
and
RHOXALPHARMA INC.
and
THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
COUNSEL AND SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-462-02
NOVARTIS PHARMACEUTICALS CANADA INC. and
NOVARTIS AG
Applicants
and
RHOXALPHARMA INC. and
THE MINISTER OF HEALTH
Respondents
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:May 13, 2002
REASONS FOR ORDER OF RICHARD MORNEAU, ESQ., PROTHONOTARY
DATED:May 15, 2002
APPEARANCES:
| Mr. Anthony G. Creber |
|
for the Applicants |
|
|
|
|
| Mr. Martin F. Sheehan |
|
for the Respondent RhoxalPharma Inc. |
|
|
|
|
SOLICITORS OF RECORD:
| Gowling Lafleur Henderson Ottawa, Ontario |
|
for the Applicants |
|
|
|
|
| Fasken Martineau DuMoulin Montreal, Quebec |
|
for the Respondent RhoxalPharma Inc. |
|
|
|
|
| Morris RosenbergDeputy Attorney General of Canada |
|
for the Respondent, the Minister of Health
|