Date: 20040915
Docket: A-138-04
Citation: 2004 FCA 298
CORAM: ROTHSTEIN J.A.
BETWEEN:
MERCK & CO. INC. and
MERCK FROSST CANADA & CO.
Appellants
(Defendants)
and
APOTEX INC.
Respondent
(Plaintiff)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE ATTORNEY GENERAL OF CANADA
Respondent
(Defendant to the Counterclaim)
Heard at Toronto, Ontario on September 15, 2004.
Judgment delivered from the Bench at Toronto, Ontario on September 15, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20040915
Docket: A-138-04
Citation: 2004 FCA 298
CORAM: ROTHSTEIN J.A.
BETWEEN:
MERCK & CO. INC. and
MERCK FROSST CANADA & CO.
Appellants
(Defendants)
and
APOTEX INC.
Respondent
(Plaintiff)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE ATTORNEY GENERAL OF CANADA
Respondent
(Defendant to the Counterclaim)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on September 15, 2004)
[1] This is an appeal from an order of a judge of the Federal Court dismissing the motion of the appellants for summary dismissal or, in the alternative, for summary determination of questions of law: Apotex Inc. v. Merck & Co., 2004 FC 314.
[2] We are not persuaded that this Court should interfere with the discretionary decision of the motions judge. In our view, the legal questions raised in this case are best answered in their complete factual context, which can only emerge after a trial. That is so even though there may be certain elements of the debate that are pure questions of law.
[3] It is undisputed that the interpretation of the Patented Medicines (Notice of Compliance) Regulations, and the amending Regulation (SOR/98-166), requires consideration of their purpose, intent and context. We do not, however, endorse paragraph 35 of the motions judge's reasons. We agree with counsel for the appellants that evidence of the understanding of the parties as to the meaning of the Regulations, third party expert evidence on statutory interpretation, and evidence of legislative drafters, is not admissible or relevant for the purpose of interpreting legislation.
[4] For these reasons, this appeal will be dismissed with costs, which are fixed at $10,000 inclusive of GST and disbursements, payable to Apotex Inc. in any event of the cause.
"Karen R. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-138-04
STYLE OF CAUSE: MERCK & CO. INC. and
MERCK FROSST CANADA & CO.
Appellants
(Defendants)
and
APOTEX INC.
Respondent
(Plaintiff)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE ATTORNEY GENERAL OF CANADA
Respondent
(Defendant to the Counterclaim)
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 15, 2004
REASONS FOR JUDGMENT
OF THE COURT BY : (ROTHSTEIN J.A., SHARLOW J.A., MALONE J.A.)
DELIVERED FROM THE
BENCH BY: SHARLOW J.A.
APPEARANCES:
Mr. Robert Charlton
Mr. Brian Daley FOR THE APPELLANTS (Defendants)
Mr. Andrew Brodkin
Mr. David Lederman FOR THE RESPONDENT (Plaintiff)
No Appearance FOR THE RESPONDENT (Defendant to the Counterclaim)
SOLICITORS OF RECORD:
Ogilvy Renault
Montreal, Quebec FOR THE APPELLANTS (Defendants)
Goodmans LLP
Toronto, Ontario FOR THE RESPONDENT (Plaintiff)
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR THE RESPONDENT (Defendant to the Counterclaim)