Merck & Co., Inc. v. Canada ( Attorney General )
T-174-99
Aronovitch P.
21/5/99
9 pp.
Motion to dismiss applicant's proceeding to prohibit Minister of Health from issuing notice of compliance (NOC) in connection with Nu-Enalapril on grounds prohibition proceeding has become moot as NOC issued to Nu-Pharm in respect of Nu-Enalapril tablets in February 1999-Alternatively, seeking dismissal or permanent stay of proceedings-In September 1997, Nu-Pharm submitted abbreviated new drug submission, in which comparison to Canadian reference product not made with Merck's (innovator manufacturer) drug, but with that of Apotex-In November 1997, Cullen J. found comparison proper and complied with Food and Drug Regulations-Merck became aware of proceeding only later and brought application to be joined in proceedings as party and moved for reconsideration of order, and later brought prohibition proceeding-In February 1999, Blais J. heard Merck's submission in relation to order and concluded that question of compliance with NOC Regulations should have been raised and argued and accordingly ordered Merck be added to proceedings and extended time to appeal order-Shortly thereafter, in February 1999, notwithstanding Merck's prohibition proceedings, Minister issued NOC to Nu-Pharm for Enalapril pursuant to Food and Drug Regulations-In March 1999, Merck commenced certiorari proceedings, seeking to quash Minister's issuance of NOC and for order setting decision aside-Merck has appealed Cullen J.'s order, therein seeking to quash NOC issued to Nu-Pharm-Motion dismissed-As question of fact, Nu-Pharm's motion premature having regard to particular and complex circumstances of case-There remain certain imponderables by reason of appeal of Cullen J.'s decision putting Minister's decision in question-Court not satisfied prohibition proceeding in these circumstances spent and cannot either in part or in whole have subsisting effect-Merck's submission that relief it seeks under NOC Regulations, s. 6(1) cannot be obtained in context of application to quash and is relief still available to it in circumstances remains subsisting issue for determination-Motion therefore premature and untimely at this juncture-Nu-Pharm's argument for stay relying solely on Federal Court Act, s. 50(1)(a) (authorizing Court to stay any matter on ground claim being proceeded with "in another Court or jurisdiction")-However, "in another Court" not including two applications in same Federal Court-No significant prejudice accruing to respondents nor Court in allowing two applications to proceed such that Merck can, in due course, and following Court of Appeal decision, select remedy which may be most appropriate in circumstances-Federal Court Act, R.S.C., 1985, c. F-7, s. 50(1)(a)-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 6-Food and Drug Regulations, C.R.C., c. 870.