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Appeals and New Trials

Motion brought under Federal Courts Rules, SOR/98-106, r. 51 appealing Prothonotary’s order refusing defendants’ motion to dismiss action against defendants Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH—Defendant Sanofi-Aventis Canada Inc. obtaining notice of compliance (NOC) to market, sell ramipril—Plaintiff also applying, obtaining NOC for ramipril—Prohibition proceedings, action against plaintiff all dismissed—Parties agreeing that test to be applied on review of Prothonotary’s decision one reformulated by Federal Court of Appeal in Merck & Co. Inc. v. Apotex Inc., 2003 FCA 488 (Merck 2003) in which Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 referred to—Issue whether “vitality” to be assessed by looking at question in motion before Prothonotary or by considering Prothonotary’s decision—Peter G. White Management Ltd. v. Canada, 2007 FC 686 establishing that not what was sought (i.e. question in motion before Prothonotary) but what was ordered by Prothonotary (i.e. answer) that is to be analyzed to see whether it is vital to final issue in case—Several Federal Court judges having since adopted this interpretation—Based on review of Federal Court of Appeal’s decisions in Aqua-Gem, Merck 2003, only possible rationale for conclusion in Aqua-Gem is that Federal Court of Appeal considering issue of vitality on basis of question before Prothonotary—Restatement of Aqua-Gem test in Merck 2003 giving effect to language in analysis, conclusion in Aqua-Gem—Restatement, Federal Court’s subsequent analysis making it clear that it is question before Prothonotary that is focus of “vitality” analysis—Question before Prothonotary in present case, i.e. removal of defendants, considered vital matter—Prothonotary’s decision thus reviewed de novo—Not plain, obvious that plaintiff’s action must fail—Appeal dismissed.

Apotex Inc. v. Sanofi-Aventis (T-1357-09, 2010 FC 1209, Simpson J., judgment dated November 30, 2010, 17 pp.)