ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
PHARMASCIENCE INC., RATIOPHARM INC., COBALT PHARMACEUTICALS INC., RANBAXY PHARMACEUTICALS CANADA INC., SANDOZ CANADA INC., GENPHARM INC. and NOVOPHARM LIMITED
Applicants
- and -
MINISTER OF HEALTH AND LONG-TERM CARE (ONTARIO), EXECUTIVE OFFICER OF THE ONTARIO PUBLIC DRUG PROGRAMS, LIEUTENANT GOVERNOR IN COUNCIL and ATTORNEY GENERAL OF ONTARIO
Respondents
Carol Hitchman and Robert Shapiro, for the Applicants
Lise Favreau, James Kendik and Erin Rizok for the Respondents, Executive Officer, Minister of Health and Long-Term Care, Attorney General for Ontario
Nando De Luca, Joseph Cosentino, for Apotex
HEARD at Toronto: November 7, 2007
GANS J.: (Orally)
1The applicants seek leave of a judge of the Superior Court to bring an application for judicial review, pursuant to s.6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.-1. It is their position that this case is one of urgency and that the delay occasioned by an application to a full panel of the Divisional Court will result in a failure of justice. I am advised by the Registrar of the Divisional Court that the next available date for a full day hearing will be the first week of December.
2The matter complained of by the Applicants arises in respect of the recently proposed designation of Apotex Inc.’s version of Lisinopril, an A.C.E. inhibitor, as a “benefit” under the Ontario Drug Benefit Act, R.S.O. 1990, c.O-10, by reference to the Ontario Drug Benefit Regulation, O.Reg. 201/96 (“ODBA”). It is the applicants’ position that the matter is urgent as a result of the recent designation of “Apo-Lisinopril” in mid-October, about which fact they just learned last week. I am told that the effective date of this designation will be November 9th, in but two days.
3The respondent Minister, who was uncharacteristically supported in this application by Apotex Inc., advanced two arguments, at least, in opposition to the applicant’s leave application:
(a) That this application is brought “too little too late”, the urgency having been created by the applicants’ own dereliction in not moving against the Minister of Health and Long-Term Care (Ontario) (the “Minister”) when Apotex Inc., arguably, should have been delisted as an interchangeable drug, under the Drug Interchangeability and Dispensing Act, R.S.O. 1990, c.P-23 (“DIDFA”) last Spring;
(b) That economic loss, while arguably extensive, should not necessarily drive the result. In this respect, reliance was placed on the decision of Swinton J. in Apotex Inc. v. Ontario (Minister of Health and Long-Term Care) [2006] O.J. No. 5141, and the cases therein referred to.
4I have had occasion to review the decision of Swinton J. referred to above and the other decisions to which her judgment made reference and several of the cases to which I was directed in respect of other issues at play in the application on the merits.
5I am going to grant leave to the applicants to pursue this matter under s.6(2). While it might be said that the applicants or any of them should have taken their best shot at the decision implicit in the fact that Apotex’s version of Lisinopril was still listed as an interchangeable drug to that of the originator after an injunction was issued against Apotex in respect of the subject A.C.E. inhibitor, that “inaction” is not, in my view, fatal in the circumstances of this case, discussed and debated in argument, including but not limited to:
(a) the exchanges and correspondence that some or several of the applicants had with the Ministry;
(b) the nature and complexity of and attendant to the application under DIDFA and ODBA, respectively;
(c) the anticipated effect that the designation under ODBA itself will have, as described in the affidavit evidence that was filed on this application.
6Respectfully, the decision of Swinton J., while reminding me of an important consideration, does not put an end to such applications by definition, as the cases other in respect of which demonstrate. Indeed, Apotex itself is more often than not the leave seeking party. Furthermore, I cannot determine from the Reasons for Decision of Swinton J. what economic loss would have been suffered or visited upon Apotex in that case, while the information before me in respect of the instant application indicates that the potential loss is apparently quite significant.
7Leave is therefore granted.
GANS J.
Date of Reasons for Judgment: November 7, 2007
Date of Release: November 7, 2007
COURT FILE NO.: 530/07
DATE: 20071107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
PHARMASCIENCE INC., RATIOPHARM INC., COBALT PHARMACEUTICALS INC., RANBAXY PHARMACEUTICALS CANADA INC., SANDOZ CANADA INC., GENPHARM INC. and NOVOPHARM LIMITED
Applicants
- and -
MINISTER OF HEALTH AND LONG-TERM CARE (ONTARIO), EXECUTIVE OFFICER OF THE ONTARIO PUBLIC DRUG PROGRAMS, LIEUTENANT GOVERNOR IN COUNCIL and ATTORNEY GENERAL OF ONTARIO
Respondents
ORAL REASONS FOR JUDGMENT
GANS J.
Date of Reasons for Judgment: November 7, 2007
Date of Release: November 7, 2007