Motion to Amend a Judgment From NOC Proceedings and Cross-motion to Adjourn Dismissed
Pfizer Canada Inc. v. The Minister of Health and Ratiopharm Ltd., 2009 FC 1165 (Hughes, J.)

November 16, 2009

John Laskin and Jennifer Conroy for the Applicants, Pfizer Canada Inc. and Pfizer Limited (Pfizer)
Glen Bloom and Bryan Norrie for the Respondent, Ratiopharm Ltd. (Ratiopharm)

This case involved two motions in the context of the Patented Medicines (Notice of Compliance) Regulations. The patent at issue had been the subject of earlier Notice of Compliance (NOC) proceedings between Pfizer and ratiopharm. 

In the first motion, Pfizer requested that Ratiopharm’s motion be quashed or stayed. The basis of this motion was that since an appeal was pending from the judgment declaring the patent invalid, ratiopharm’s motion was premature. Justice Hughes decided to deal with Ratiopharm’s motion, since it has been fully argued and since there were many reasons to dismiss it. 

Ratiopharm’s motion sought an order setting aside an earlier order of the Federal Court of Appeal in which an Order of Prohibition had been issued. Justice Hughes’s findings in respect of Ratiopharm’s motion were as follows:

1) The Federal Court lacked jurisdiction to set aside the order of the Federal Court of Appeal.

2) The Order of Prohibition given by the Federal Court of Appeal had been rendered moot since the NOC that would have been prohibited by that order had now been given to Ratiopharm.

3) The Order of Prohibition given by the Federal Court of Appeal was dispositive of the matter, and no order of dismissal could be made. Ratiopharm had argued for a dismissal of the NOC proceedings on three grounds: i) the inherent jurisdiction of the Court; 2) Rule 399(2)(a) of the Federal Court Rules; which states that the Court may set aside or vary an order by reason of a matter that arose or was discovered subsequent to the making of that order; and 3) Rule 399 (2)(b) of the Federal Court Rules, which states that the Court may set aside or vary an order where that order was obtained by fraud.  In respect of the argument advanced under Rule 399(2)(b), Justice Hughes found that a NOC proceeding should be determined in isolation from an impeachment action and that the findings of an impeachment action are not to affect the findings in a NOC proceeding. Since in this case there was no allegation of fraud raised in the NOC proceeding, Justice Hughes found that Rule 399(2)(b) did not apply. 

By: Jacqueline Chernys