Merck Frosst Canada Inc. v. Canada ( Minister of Health and Welfare )
A-80-94
Hugessen J.A.
2/5/94
23 pp.
Appeal from FCTD decision ((1988), 22 C.P.R. (3d) 177), dismissing application to compel productions and answers on cross-examination on affidavits-Appellant applying to Trial Division under Patented Medecines (Notice of Compliance) Regulations, s. 6 to prohibit respondent, Minister of National Health and Welfare, from issuing notice of compliance to Apotex Inc. in respect of norfloxacin-Allegation made by Apotex in April 1993 under Regulations, s. 5(1)(b)(iv) in support of submission for notice of compliance in respect of norfloxacin-Novopharm Ltd. said to hold valid compulsory licence under former provisions of Patent Act and to have agreed to act as source of norfloxacin for Apotex-Merck launching application for prohibition within time limit prescribed-Cross-examination on affidavits of Apotex's president giving rise to refusals to answer and to produce, to motion to compel answers and productions, to judgment under review and to present appeal-Merck, as initiator of proceedings, having carriage of litigation, bearing initial burden of proof-Proceedings under Regulations, s. 6 not action for infringement of patent-In determining whether allegations "justified", Court must decide whether allegations would give rise in law to conclusion patent not infringed by respondent-Questions objected to on cross-examination of Apotex's president grouped into three categories-Category 1: Breach of agreement between Novopharm and Apotex and enforceability-Breach of agreement between Apotex and Novopharm of no concern to Merck-Breach, even if proven, would not necessarily make agreement unenforceable-Category 2: Interpretation of nature of contract-Questions relating to drafting of agreement between Apotex and Novopharm, identity of draftperson and content of drafts prior to final version-Irrelevant herein-Category 3: questions relating to name of source(s) for material listed in submission whether obtained in Canada or outside and to evidence establishing ability to produce consistent product, namely norfloxacin-Appellant, commercial rival of respondent, having no legitimate legal interest in knowing latter's ability to produce consistent product-Matter irrelevant to issues raised on application-Appeal dismissed-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 1, 2, 3, 4, 5, 6, 7, 8, 9-Patent Act, R.S.C., 1985, c. P-4.