Hoffmann-La Roche Ltd. v. Canada ( Minister of National Health and Welfare )
T-1898-93
Reed J.
30/4/99
9 pp.
Motion by respondent Apotex to set aside order issued on March 20, 1996-March 1996 order relating to notice of allegation, dated June 15, 1993, Apotex filed with Minister of National Health and Welfare in connection with new drug submission for sustained release naproxen tablet-Notice of allegation of non-infringement necessary as Syntex listed Canadian Letters Patent No. 1,204,671 (_671 Patent) with Minister under Patented Medicines (Notice of Compliance) Regulations, s. 4-_671 patent declared invalid-Apotex formulation to which notice of allegation related declared not to infringe _671 patent-In November 1998, notice of compliance mistakenly issued to Apotex by Minister-Hoffmann-La Roche, Syntex filing application for order declaring November 1998 notice of compliance void-Order granted by Evans J. on April 7, 1999-Subsequent motion to stay order pending appeal refused on April 21, 1999-Order of prohibition not having same historical roots as injunction-One equitable remedy, other remedy at law-Effect of both types of orders same-Court having inherent continuing jurisdiction, in case of order of prohibition issued pursuant to proceedings set out in Patented Medicine (Notice of Compliance) Regulations, to amend, annul order in response to changed circumstances in same manner as case of injunction-Granting order sought not collateral attack on decisions given by Evans J.-Not necessary to allow Minister to issue notice of compliance-Order declaring _671 patent to be "invalid, void and of no force and effect" entitling Minister to treat patent as nullity for s. 4 purposes-Court having jurisdiction to set aside March 20, 1996 order in present situation, not on ground void when given, but as result of changed circumstances-Orders requested granted-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 4.