Bull Laboratories Inc. v. Pharmacia Inc. (1994), 176 N.R. 48 (FCA)
MLB headnote and full text
David Bull Laboratories (Canada) Inc. (appellant) v. Pharmacia Inc., Farmitalia Carlo Erba S.R.L. and The Minister of National Health and Welfare (respondents)
(A-332-94)
Indexed As: Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.
Federal Court of Appeal
Stone, Strayer and Robertson, JJ.A.
November 1, 1994.
Summary:
Pharmacia and Farmitalia filed a notice of motion seeking a prohibition against the Minister of Health and Welfare from issuing a notice of compliance to Bull. Bull applied to strike the notice of motion and for an order requiring a deponent of an affidavit filed by Pharmacia and Farmitalia to re-attend for cross-examination and to answer certain questions.
The Federal Court of Canada, Trial Division, dismissed the application. Bull appealed.
The Federal Court of Appeal dismissed the appeal.
Food and Drug Control – Topic 1104
Drugs – New drugs – Notice of compliance – Pharmacia and Farmitalia filed a notice of motion seeking a prohibition against the Minister of Health and Welfare from issuing a notice of compliance to Bull – Bull applied to strike the notice of motion under Federal Court Rule 419 or rule 5 – The Federal Court of Appeal held that rule 419 applied to an “action” or a “pleading” and did not directly authorize the striking out of a notice of motion – The court held that the proper way to contest an originating notice of motion was at the hearing of the motion and therefore a procedure for striking out the notice of motion was not necessary or appropriate – See paragraphs 6 to 16.
Practice – Topic 14
General principles and definitions – Procedures not provided for in the rules – Federal Court Rule 5 allowed the court to fill gaps in the Rules by referring to other provisions of the Rules or provincial rules of court – The Federal Court of Appeal stated that “Simply because those Rules do not contain every provision found in provincial court rules does not necessarily mean there is a gap. If the absence of such a provision can be readily explained by the general scheme of the [Rules] then that absence must be considered intentional and any application by analogy of provincial court rules or other Provisions of the [Rules] which are on their face inapplicable would amount to an amendment of the [Rules].” – See paragraphs 8 to 9.
Practice – Topic 2242
Pleadings – Striking out pleadings – Appeals, applications or originating motions – [See
Food and Drug Control – Topic 1104
].
Practice – Topic 2494
Writ of summons, endorsements, originating summons and originating notices – Originating notices – Striking out – [See
Food and Drug Control – Topic 1104
].
Cases Noticed:
Procter & Gamble Co. v. Nabisco Brands Inc. (1985), 62 N.R. 364; 5 C.P.R.(3d) 417 (F.C.A.), refd to. [para. 7].
Bayer AG v. Canada (Minister of National Health and Welfare) (1993), 163 N.R. 183; 51 C.P.R.(3d) 329 (F.C.A.), refd to. [para. 11].
Merck Frosst Canada Inc. et al. v. Canada (Minister of National Health and Welfare) et al. (1994), 169 N.R. 342; 55 C.P.R.(3d) 302 (F.C.A.), consd. [para. 11].
Cynamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R.(2d) 133 (F.C.T.D.), refd to. [para. 15].
Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127 (T.D.), refd to. [para. 15].
Statutes Noticed:
Code of Civil Procedure (Que.), c. III.1, sect. 75.1 [para. 8].
Federal Court Rules, rule 2, rule 5 [para. 8]; rule 319(1) [para. 10]; rule 419 [para. 6]; rule 419(1) [para. 8]; rule 1600 [para. 11]; rule 1602(2) [para. 10]; rule 1605, rule 1614(2), rule 1617 [para. 11].
Patent Act, Regulations (Can.), Patented Medicines (Notice of Compliance) Regulations SOR/93-133, sect. 5, sect. 6(1) [para. 3]; sect. 7(1), sect. 7(5) [para. 12].
Rules of Civil Procedure (Ont.), rule 14.09 [para. 8].
Counsel:
Susan Beaubien, for the appellant;
Gunars A. Gaikis and Peter R. Wilcox, for the respondent, Pharmacia Inc. and Farmitalia Carlo Erba S.R.L.;
No One Appearing for the respondent, Minister of National Health and Welfare.
Solicitors of Record:
Shapiro, Cohen, Andrews, Finlayson, Ottawa, Ontario, for the appellant;
Smart & Biggar, Toronto, Ontario, for the respondent, Pharmacia Inc. and Farmitalia Carol Erba S.R.L.;
George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Minister of National Health and Welfare.
This case was heard on October 18, 1994, at Ottawa, Ontario, by Stone, Strayer and Robertson, JJ.A., of the Federal Court of Appeal.
The decision of the Court of Appeal was delivered at Ottawa, Ontario, by Strayer, J.A., on November 1, 1994.
