Hoffmann-La Roche Ltd. v. Canada ( Minister of National Health and Welfare )
A-286-98 / A-287-98
Strayer J.A.
13/1/99
5 pp.
Appeals from Hugessen J.'s dismissal of applications for prohibition, certiorari to prevent or quash issue of notices of compliance (NOCs) with respect to formulations of naproxen, on principle of res judicata: i.e. request for determination stay provided by Patented Medicines (Notice of Compliance) Regulations, s. 7 until all appeals disposed of refused by Associate Chief Justice in proceeding involving same parties-By s. 7(4) stay against Minister preventing issue of NOC, automatically provided by s. 7(1) when application for prohibition launched, may cease to apply if application finally dismissed by court-Appellants contending on basis of "finally dismissed" Hugessen J. should have prohibited Minister from issuing NOCs until all appeals from decision exhausted-Hugessen J. of view Associate Chief Justice already in effect refusing such remedy-As issue not properly before Associate Chief Justice, decision not res judicata-In interpreting "finally dismissed" in s. 7(4), regard had to whole phrase-"Court" referred to therein defined as Federal Court of Canada or other superior court of competent jurisdiction-As long as proceeding brought in Federal Court, Trial Division, "dismissed by the court" means "dismissed by the Federal Court Trial Division"-Most consistent with definition of "court" which includes provincial superior courts of competent jurisdiction, presumably referring only to those which have original jurisdiction in prohibition-Even if reference to "court" including both divisions of Federal Court, matter commenced in Trial Division "finally dismissed" when appeal disposed of in Appeal Division or time for appealing expired-This conclusion generally consistent with summary nature of proceedings under Regulations, and fact issue of NOC in no way finally determining rights of patentee-R. v. Morgentaler, [1988] 1 S.C.R. 30; Leblanc et al. v. Curbera, [1983] 2 S.C.R. 28 (cases cited on meaning of "final") distinguishable-Now no basis for granting prohibition, treating NOC as invalid because in conflict with s. 7(1) stays, which terminated-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 7.