Pfizer Canada Inc. v. Apotex Inc.
T-1745-98
Lemieux J.
15/6/99
21 pp.
Appeal by respondent Apotex Inc. from order of Associate Senior Prothonotary dismissing Apotex's motion under Patented Medicines Notice of Compliance Regulations, s. 6(5) to have applicants' application dismissed on grounds "frivolous, vexatious, otherwise constitutes abuse of process"-Applicants seeking order prohibiting respondent Minister of Health and Welfare from issuing notice of compliance to Apotex in respect of drug sertraline hydrochloride until after expiration of Canadian Patent 1,130,815-Seminal case on question of standard of review of prothonotary's order Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)-Order under appeal deciding question vital to final issue of case-Not appropriate instance to grant relief sought by Apotex, counsel for Pfizer having raised number of issues not so futile, so devoid of merit application deserves to be struck-Pfizer's primary argument in resisting Apotex's motion to strike legal in nature focussing on scope of Patent Act, s. 55.2 which is basis for Apotex's allegation of non-infringement, justification-All issues of statutory interpretation raising genuine questions required to be determined on merits, not on motion to strike-Resolution of conflicting factual situations necessary to properly understand factual context for statutory interpretation should not be undertaken at motion to strike stage, here to dismiss-Issue raised here contextual relationship between Regulations, ss. 5(1)(a), 5(1)(b), significance-Issue having sufficient merit necessitating full debate on hearing of application-Appeal dismissed-Patent Act, R.S.C., 1985, c. P-4, s. 55.2 (as enacted by S.C. 1993, c. 2, s. 4)-Patented Medicines Notice of Compliance Regulations, SOR/93-133, ss. 5(1) (as am. by SOR/98-166, s. 4), 6(5) (as enacted idem, s. 5(2)).