Glaxo Group Ltd. v. Canada ( Minister of National Health and Welfare )
T-1983-93 / T-2025-93
Richard J.
27/10/95
6 pp.
Applications for order prohibiting Minister from issuing notices of compliance to Apotex Inc. in respect of ranitidine hydrochloride and salbutamol-Precise issues raised herein already decided by intervening case law-Bell v. Cessna Aircraft Co. (1983), 149 D.L.R. (3d) 509 (B.C.C.A.) expressing principle of judicial comity: generally comity that court bound to follow previous decision of court unless previous decision wrong, or should no longer be followed, for example, (1) decision failed to consider legislation or binding authorities which would have produced different result, or (2) decision, if followed, would result in severe injustice-While judicial comity fundamental reason for this approach, certainty of law equally fundamental, if not more compelling reason-Lawyers in intolerable position in advising clients if division of court free to decide appeal without regard to previous decision of principle involved-Canada Steamship Lines Ltd. v. Minister of National Revenue, [1966] Ex. C.R. 972 indicating court bound to approach matter in same way similar problem approached in other cases until different course indicated by higher court-"Bound" not by any strict rule of stare decisis but by own view as to desirability of having Court's decisions follow consistent course as far as possible-In Regina v. Northern Electric Company, Limited et al., [1955] O.R. 431 (H.C.), McRuer C.J.H.C. referring to Sir Frederick Pollock, First Book of Jurisprudence, where states decisions of ordinary superior court binding on all courts of inferior rank within same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority or on that court itself, will be followed in absence of strong reason to contrary-"Strong reason to contrary" meaning something indicating prior decision given without consideration of statute or some authority that ought to have been followed-With respect to patents containing claims for particular process producing medicine, known as process claim, Court bound by Deprenyl Research Ltd. et al. v. Apotex Inc. et al. (1995), 60 C.P.R. (3d) 501 (F.C.A.); affg (1994), 55 C.P.R. (3d) 171 (F.C.T.D.)-As to claims to pharmaceutical compositions and crystalline form of compound, Apotex not showing Hoffmann-La Roche Ltd. v. Canada (Minister of National Health and Welfare), [1995] F.C.J. No. 985 (T.D.) (QL), manifestly wrong-Order prohibiting Minister from issuing NOC until expiration of patents granted-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6(1.)