T-304-96
| BETWEEN: MERCK FROSST CANADA INC., and |
| MERCK & CO., INC., |
| Applicants, |
| AND: |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE, |
| and THE ATTORNEY GENERAL FOR CANADA, |
| Respondents, |
| AND: |
| APOTEX INC. and NOVOPHARM LIMITED |
| Intervenors. |
| T-306-96 |
| MERCK FROSST CANADA INC., and |
| MERCK & CO., INC., |
| Applicants, |
| AND: |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE, |
| and THE ATTORNEY GENERAL FOR CANADA, |
| Respondents, |
| AND: |
| APOTEX INC. and NOVOPHARM LIMITED |
| Intervenors. |
| T-386-96 |
| GLAXO WELLCOME INC., and |
| THE WELLCOME FOUNDATION LIMITED |
| Applicants, |
| AND: |
| THE MINISTER OF NATIONAL HEALTH AND WELFARE, |
| and THE ATTORNEY GENERAL FOR CANADA, |
| Respondents, |
| AND: |
| APOTEX INC. and NOVOPHARM LIMITED |
| Intervenors. |
REASONS FOR ORDER
NOËL J.
The Applicants, the Respondent Minister of Health and Welfare and the Intervenors each bring motions arising from the Order of MacKay J. made on January 29, 1997 granting the Intervenors leave to intervene in the within proceedings.
The Applicants seek a stay of that decision pending the hearing of the Appeal which they have lodged against it. The Respondent Minister seeks directions as to whether he is bound to produce, pursuant to Rule 1612 or pursuant to the Order of MacKay J., a copy of specified material requested by the Intervenors and the Intervenors seek a declaration that the material in question is relevant and ought to be produced by the Respondent Minister.
I am unable to accede to the Applicants' request for a stay. The decision of MacKay J. appears to me to be based on proper principle1 and I fail to see how irreparable harm could be brought upon the Applicants in the absence of the issuance of a stay.
I am also unable to grant the orders sought by the Intervenors. First of all, only a party can compel production of materials pursuant to Rule 1612, and the Order of MacKay J. denies the motion which had been made by the Intervenors to be joined as parties. The Intervenors have not appealed that decision.
Secondly, the Order of MacKay J. granting leave to intervene was granted on terms as Rule 1611 contemplates. Nothing in that Order suggests that the Intervenors could despite not being named as parties have access to the material before the Minister over and beyond that which he has already produced. On the contrary, the reasons given by MacKay J. in support of his Order indicate quite clearly that he did not envision that the Intervenors would have that right.
At page 10 of his reasons, the MacKay J. premised his decision on the following proviso:
| "Provided their admission to the proceedings at this stage does not in itself result in postponement or delay, I do not accept that any prejudice is caused to the original parties or to these proceedings." |
Earlier on he had stated his understanding of the evidentiary basis upon which the intervention would take place:
| For the proposed participants it is urged that they would provide evidence of the number of patents and patent lists, and thus of drug products that may be affected if the Minister's plan to remove process patents from patent lists is completed. That evidence and additional material would come primarily from the Minister's own records, provided in response to the requests of the applicants for judicial review under the Court's Rules but not included in the application records filed by those applicants. The Record filed on behalf of the respondents is said to be without affidavit or other evidence at this stage, consisting only of a memorandum of fact and law, or of argument. The proposed participants say there is other evidence in the records filed by the Minister with the Court in response to the request of the applicants for judicial review. In my opinion, those records are before the Court and argument may be directed to documentary evidence from the Minister's own records filed with the Court whether or not that evidence is included in application records already filed by the parties to the judicial review proceedings. In addition, of course, the proposed participants can bring before the Court evidence and argument about the effects upon their interests of one or another interpretation of the Regulations. (emphasis added) |
The terms of the Order also reveal that the evidence emanating from the Minister and required by the Intervenors was understood to be comprised within the materials already produced by the Minister:
| 1.iii) the record before the Court for hearing of this matter shall consist of application records already filed by the original parties to these proceedings, any supplementary application records they may file, any application record filed on behalf of the intervenors, including in each case the affidavits filed and transcripts of any cross-examination upon those, and also the full documentary record provided by the Minister of National Health and Welfare to the applicants for judicial review and already filed with the Registry of the Court, (emphasis added) |
Finally, the comments of MacKay J. in open Court indicate that he clearly communicated his understanding that no additional material would be required from the Minister.2
In my view, it is quite clear that if the then "proposed participants" had in mind recourse to evidence over and beyond that which had already been produced by the Minister, they had a duty to let that be known as this could have had a significant impact on the discretion which MacKay J. exercised in their favour. As matters were left, MacKay J. satisfied himself that the grant of the intervention would not alter the timetable which had been set by Order of the Associate Chief Justice. He was able to do so on the basis of his carefully stated understanding of how the record would be constituted. The Intervenors having failed to appraise MacKay J. of their position as to the insufficiency of the materials which the Minister had provided cannot now rely on his Order to seek the production of additional material.
I would therefore deny the motions of both the Applicants and the Intervenors and deal with the two questions raised by the Respondent Minister as follows:
| 1. Whether the Intervenors are entitled to the material requested pursuant to rule 1612? |
Answer: NO
| 2. Whether the Intervenors are entitled to the material requested pursuant to the Order of MacKay J. dated January 29, 1997? |
Answer: NO
_____________________________
Judge
MONTREAL, Québec
February 18, 1997
FEDERAL COURT OF CANADA
Court Nos. T-304-96,T-306-96, T-386-96
BETWEEN T-304-96
MERCK FROSST CANADA INC., and
MERCK & CO., INC.,
| Applicants, |
AND: THE MINISTER OF NATIONAL
HEALTH AND WELFARE,
and THE ATTORNEY GENERAL FOR
CANADA,
Respondents,
AND: APOTEX INC. and NOVOPHARM
LIMITED
Intervenors.
T-306-96
MERCK FROSST CANADA INC., and
| MERCK & CO., INC., |
| Applicants, |
AND: THE MINISTER OF NATIONAL
HEALTH AND WELFARE,
and THE ATTORNEY GENERAL FOR
CANADA,
Respondents,
AND: APOTEX INC. and NOVOPHARM
LIMITED
Intervenors.
T-386-96
GLAXO WELLCOME INC. and
| THE WELLCOME FOUNDATION |
LIMITED
| Applicants, |
AND: THE MINISTER OF NATIONAL
HEALTH AND WELFARE,
and THE ATTONEY GENERAL FOR
CANADA,
Respondents,
AND: APOTEX INC. and NOVOPHARM
LIMITED
Intervenors.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NOS: T-304-96, T-306-96, T-386-96
STYLE OF CAUSE: T-304-96
MERCK FROSST CANADA INC., and
| MERCK & CO., INC., |
| Applicants, |
AND:
| THE MINISTER OF NATIONAL HEALTH AND WELFARE, |
and THE ATTORNEY GENERAL FOR CANADA,
Respondents,
AND:
| APOTEX INC. and NOVOPHARM LIMITED |
Intervenors.
T-306-96
MERCK FROSST CANADA INC., and
| MERCK & CO., INC., |
| Applicants, |
AND:
| THE MINISTER OF NATIONAL HEALTH AND WELFARE, |
and THE ATTORNEY GENERAL FOR CANADA,
Respondents,
AND:
| APOTEX INC. and NOVOPHARM LIMITED |
Intervenors.
T-386-96
GLAXO WELLCOME INC. and
| THE WELLCOME FOUNDATION LIMITED |
| Applicants, |
AND:
| THE MINISTER OF NATIONAL HEALTH AND WELFARE, |
and THE ATTORNEY GENERAL FOR CANADA,
Respondents,
AND:
| APOTEX INC. and NOVOPHARM LIMITED |
Intervenors.
PLACE OF HEARING: Montreal, Quebec
- 2 -
DATE OF HEARING: February 17, 1997
REASONS FOR ORDER BY: The Honourable Mr. Justice Noël
DATED: February 18, 1997
APPEARANCE:
Mrs. Judith Robinson/ for the Applicants
Mr. Leigh Crestohl
Me André Lespérance for the Respondents
Mr. Edward Hore/ for the Intervenors
Mr. Roger Bauman
SOLICITORS OF RECORD:
Me Patrick E. Kierans/ for the Applicants
Mrs. Judith Robinson/Mr. Leigh Crestohl
OGILVY RENAULT
Montreal, Quebec
Mr. Frederick Woyiwada for the Respondents
DEPARTMENT OF JUSTICE
Ottawa, Ontario
Me André Lespérance
DEPARTMENT OF JUSTICE
Montreal, Quebec
Mr. Edward Hore/Mr. Roger Bauman for the Intervenors
HAZZARD & HORE
Toronto, Ontario
__________________
1 The only significant ground which the Applicants were able to raise in support of the position that their appeal raises a serious issue is that the Order of MacKay J. grants the Intervenors an independent right of appeal. Quite obviously, this is a matter which can be dealt with by the Court of Appeal in due course and which cannot be relied upon in support of an application for a stay.
2 See transcript of hearing, Applicants' record, at p. 145 et seq. (p. 108 et seq. of transcript).