ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
APOTEX INC.
Applicant
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, ONTARIO LIEUTENANT GOVERNOR IN COUNCIL AND ATTORNEY GENERAL OF ONTARIO
Respondents
RHOXALPHARMA INC.
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, & Others
- and -
PHARMASCIENCE INC.
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, & Others
- and -
COBALT PHARMACEUTICALS INC.
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, & Others
Counsel:
H.B. Radomski and J. Cosentino, for Apotex
Dennis W. Brown, Q.C. and James Kendik, for the Respondents
C. Hitchman and A. Browne, for Rhoxalpharma Inc. and Pharmascience Inc.
L. A. Thacker, for Cobalt
HEARD: April 2, 2004
O’DRISCOLL J.: (Orally)
1The question of the applicability of s.6(2) of the Judicial Review Procedure Act was argued and I concluded that its prerequisites had been satisfied. After that we had a recess. After recess, Ms. Sara Zborovski, counsel for Genpharm Inc. addressed the Court and asked that these applications be adjourned until April 5, 2004 to give her the opportunity to read what has been filed and then ask for intervenor status.
2She asked for this indulgence because her client was not served. Mr. Radomski advises that Genpharm Inc. has know about this application since the Executive Meeting of the CGPA held last Monday, March 29, 2004.
3Counsel discussed the delaying of the coming into force of Genpharm Inc.’s generic drug in the April 6, 2004 proclamation. Genpharm will not consent to this because in the words of its counsel “We did nothing wrong”. There is no doubt that audi alterem partem should hold sway, but not necessarily at any cost to one and all, including the court system. It may be that, come Monday, Genpharm Inc. may choose not to apply for intervenor status. This all calls for a Solomon type decision which, I confess, I am not equipped to produce.
4The four (4) applications for judicial review are adjourned to 10:00 a.m., April 5, 2004. At that time, Genpharm Inc. will either make an application to intervene or advise that it does not intend to do so. In the interim, there will be an interim order that until further order, the two (2) generic listings of Genpharm Inc., identified on p.2 of the proposed Update “C” for April 6, 2004, shall not take effect.
O’DRISCOLL J.
Date of Reasons for Judgment: April 2, 2004
Date of Release: April 13, 2004
COURT FILE NO.: 157/04; 162/04; 173/04 and 176/04
DATE: 20040402
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
APOTEX INC.
Applicant
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, ONTARIO LIEUTENANT GOVERNOR IN COUNCIL AND ATTORNEY GENERAL OF ONTARIO
Respondents
RHOXALPHARMA INC.
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, & Others
- and -
PHARMASCIENCE INC.
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, & Others
- and -
COBALT PHARMACEUTICALS INC.
- and -
MINISTER OF HEALTH AND LONG-TERM CARE, & Others
ORAL REASONS FOR JUDGMENT
O’DRISCOLL J.
Date of Reasons for Judgment: April 2, 2004
Date of Release: April 13, 2004