Astrazeneca Canada Inc. v. Canada (Minister of Health)

Astrazeneca Canada Inc. v. Canada (Minister of Health)
Court (s) Database
Federal Court Decisions
Date
2001-06-08
Neutral citation
2001 FCT 630
File numbers
T-1549-00
Decision Content
Date: 20010608
Docket: T-1549-00
Neutral Citation: 2001 FCT 630
MONTREAL, QUEBEC, THIS 8th DAY OF JUNE 2001
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
ASTRAZENECA CANADA INC.
and
MERCK & CO., INC.
Applicants
AND
THE MINISTER OF HEALTH
and
NU-PHARM INC.
Respondents
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] WHEREAS the Applicants commenced this proceeding by Notice of Application dated August 21, 2000 under the Patented Medicines (Notice of Compliance) Regulations ("Regulations") in response to a letter dated July 3, 2000 from Nu-Pharm Inc. ("Nu-Pharm") in respect of Canadian Patent No. 1,275,350;
[2] AND WHEREAS Nu-Pharm has withdrawn the allegation contained in its Notice of Allegation dated July 3, 2000 and the Notice of Allegation itself dated July 3, 2000;
[3] AND WHEREAS by letter dated June 1, 2001, the Therapeutic Products Directorate of Health Canada has confirmed that Nu-Pharm does not have a Notice of Allegation in respect of lisinopril;
[4] AND WHEREAS the Applicants have agreed to discontinue this Application;
[5] AND WHEREAS the jurisprudence indicates that the withdrawal of an allegation renders an application under the Regulations moot;
[6] IT IS HEREBY ORDERED THAT:
[7] This application is moot.
[8] The Applicants are at liberty to discontinue this Application.
[9] Nu-Pharm shall pay the costs of the respective Applicants from the date of service of the July 3, 2000 letter ("the costs"). The Applicants have requested that the costs be on a solicitor-client basis. However, I am satisfied under the present circumstances that the allegation given by Nu-Pharm was withdrawn shortly after the inception of the Applicants' Application due to an unanticipated change of circumstances brought about by Apotex's refusal to supply any pre-patent lisinopril. I fail to see how the record discloses any reprehensible, scandalous or outrageous conduct on the part of Nu-Pharm during the course of the litigation. Therefore, the costs go to the Applicants in accordance with Column III of the table to Tariff B.
Richard Morneau
Prothonotary
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-1549-00
ASTRAZENECA CANADA INC.
and MERCK & CO., INC.
Applicants
AND
THE MINISTER OF HEALTH
and NU-PHARM INC.
Respondents
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:June 4, 2001
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:June 8, 2001
APPEARANCES:
Mr. Brian Daley
for the Applicants
Mr. D.M. Scrimger
for the Respondent Nu-Pharm Inc.
SOLICITORS OF RECORD:
Ogilvy Renault
Montreal, Quebec
for the Applicant Merck & Co., Inc.Smart & Biggar
Toronto, Ontario
for the Applicant AstraZeneca Canada Inc.
Mr. Morris Rosenberg
Deputy Attorney General of Canada
for the Respondent, The Minister of Health
Goodmans LLP
Toronto, Ontario
for the Respondent Nu-Pharm Inc.