Schering Canada Inc. v. Nu-Pharm Inc.
T-2274-93
Rothstein J.
22/9/94
10 pp.
Nu-Pharm Inc., second person, filing, serving submission for notice of compliance in respect of "Ioratadine", antihistamine, including notice of allegations containing legal, factual basis therefor in accordance with Patented Medicines (Notice of Compliance) Regulations, s. 5 -- Schering commencing proceedings by way of application, with supporting affidavits, for order prohibiting Minister from issuing notice of compliance to Nu-Pharm until after expiration of patents -- Federal Court Rules, Part V.1 applicable to proceedings under Regulations -- Nu-Pharm not filing affidavits within 30 days from service of application as required by R. 1603(3) -- Schering perfecting application for prohibition by filing, serving application record -- Nu-Pharm denied extension of time to file, serve affidavit evidence -- Nu-Pharm filing, serving almost identical second notice of allegations; Schering commencing second prohibition application -- Schering arguing Regulations contemplate only one notice of allegations -- Regulations not expressly stating how many notices of allegations second person may file, but do recognize amendments thereto may be necessary to take account of new information after original notice of allegations filed -- No new information herein -- Regulations providing summary procedure for determining whether second person should be prohibited from obtaining notice of compliance for product -- If first person failing to file, serve application for prohibition within 45 days of service of notice of allegations, Minister may issue notice of compliance to second person after expiration of 45-day period -- No provision for extension of time to file application for prohibition -- Unfair to allow second person to circumvent refusal of extension of time to file evidence by serving new notice of allegations when not open to first person to regain same opportunity because cannot file new application for prohibition order -- Secondly, as second notice of allegations giving rise to same application for prohibition, evidence as filed in response to first notice of allegations, once first application for prohibition adjudicated, matter will have been decided on merits, rendering prohibition application res judicata -- Regulations not contemplating multiple notices of allegations setting forth same allegations to circumvent time limits in Rules of Court -- Court not required to make decision in second allegation -- Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 5, 6 -- Federal Court Rules, C.R.C., c. 663, RR. 1603 (as enacted by SOR/92-43, s. 19; SOR/94-41, s. 15), 1606 (as enacted by SOR/92-43, s. 19) -- Patent Act, R.S.C., 1985, c. P-4, s. 55.2 (as enacted by S.C. 1993, c. 2 s. 4).