T-218-86
Apotex Inc. (Plaintiff)
v.
Attorney General of Canada and Minister of Na
tional Health and Welfare (Defendants)
INDEXED AS: APOTEX INC. V. CANADA (ATTORNEY GENERAL)
Trial Division, Walsh J.—Toronto, March 3;
Ottawa, March 6, 1986.
Practice — Parties — Intervention — Standing — Pfizer
Canada Inc. seeking to intervene in proceedings for mandamus
directing issuance of notice of compliance or declaration en
titled to such notice — Pfizer claiming to be originator of drug
piroxicam — Contending Minister acting illegally in deter
mining whether plaintiff fulfilling requirements of Act and
Regulations in deciding to issue notice of compliance for
allegedly identical drug — Pfizer having substantial economic
interest in delaying marketing of plaintiffs product as generic
drug — No status to intervene — Direct legal interest, as
distinct from economic interest, required — Alleged copyright
infringement and judicial review proceedings not justifying
intervention — If motion denied, Pfizer continuing to sell
product, potential reduction of sales representing merely eco
nomic interest — Plaintiffs motion against Minister not
appropriate for hearing of Pfizer's objections to Minister's
decision to issue notice of compliance — Pfizer in adversarial
position to Minister — R. 1716 requiring addition as defend
ant — If motion allowed, creating precedent leading to multi
tude of similar applications whenever competitor seeking
notice of compliance to market as generic drug product similar
to originator — Federal Court Rules, C.R.C., c. 663, RR. 5,
1716(2) — Food and Drug Regulations, C.R.C., c. 870, ss.
C.08.002, C.08.004 — Food and Drugs Act, R.S.C. 1970, c.
F-27 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28 — Trade Marks Act, R.S.C. 1970, c. T-10, s. 37 —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.) — Rules of Practice, R.R.O. 1970, Reg. 545, R. 136
— Quebec Code of Civil Procedure.
Criminal justice — Food and drugs — Pfizer, originator of
drug Feldene (piroxicam) contending Minister acted illegally
in determining whether Apotex met requirements of Act and
Regulations for notice of compliance for identical generic
product — Apotex seeking mandamus directing issuing of
notice retroactively — Pfizer seeks to be added as party —
Pfizer's position that notice not be issued without further
inquiries by Minister — Affidavit evidence of impurities in
Apotex product — Pfizer having economic interest in delaying
marketing of Apotex product — Unlike Trade Marks Act, no
provision in Food and Drugs Act for opposition by interested
party — Minister's duty to protect public, not economic inter
ests of competitors or originators — Permitting Pfizer to
intervene would create precedent leading to multitude of simi
lar applications — Motion for intervention denied — Food and
Drugs Act, R.S.C. 1970, c. F-27 — Food and Drug Regula
tions, C.R.C., c. 870, ss. C.08.002, C.08.004.
Pfizer Canada Inc. seeks leave to intervene in the plaintiffs
action for mandamus to compel the issuance of a notice of
compliance or for a declaration that it is entitled to such notice.
Pfizer claims to be the originator of the drug piroxicam and
claims that the Minister acted illegally in determining whether
the plaintiff has fulfilled the requirements of the Act and
Regulations in agreeing to issue the notice of compliance.
Pfizer has a substantial economic interest in delaying the
marketing of the plaintiffs identical product as a generic drug.
It seeks to stop the issuance of the notice of compliance.
Held, the motion should be dismissed.
It is doubtful that Pfizer has any status to intervene. For a
party to have such status it must have a direct legal interest, as
distinct from an economic interest. In Re Doctors Hospital and
Minister of Health et al. (1976), 68 D.L.R. (3d) 220 (Ont.
H.C.), a hospital's approval to operate as a public hospital was
revoked and doctors employed there were granted status to
intervene in an action for a declaration that the decision should
be set aside. The doctors faced loss of employment, where as
Pfizer would continue to sell its product, the potential reduction
of sales representing merely an economic interest. The reasons
for judgment in Solosky v. The Queen, [1978] 1 F.C. 609;
(1977), 17 N.R. 92 (C.A.), indicate that an applicant must
show that it is an aggrieved party and that it has a proprietary
interest in the appeal. In Rothmans of Pall Mall Canada
Limited v. Minister of National Revenue (No. 1), [1976] 2 F.C.
500 (C.A.), it was held that a person should not have the right
to interfere with an official action affecting an existing com
petitor solely to prevent the competitor from obtaining some
advantage.
Although Pfizer has instituted copyright infringement pro
ceedings against the plaintiff, this does not justify Pfizer's
intervention in proceedings between the plaintiff and the Minis
ter. Pfizer has also instituted proceedings under section 28 of
the Federal Court Act against the Minister's alleged decision to
issue a notice of compliance. It appears inconsistent to institute
section 28 proceedings, which require that a decision has
already been made, and at the same time seek to intervene in a
motion to prevent the issue of a notice of compliance, an
administrative step apparently involving no further decision.
Pfizer can hardly seek the right to argue the matter both ways.
By subsection 28(3) of the Federal Court Act, if the Court of
Appeal has jurisdiction to review an order, then the Trial
Division has no jurisdiction to entertain any proceeding in
respect of that order. An administrative decision will only be
overturned by judicial review in exceptional circumstances. The
evidence that the Minister has not complied with his duty is
scanty. Nor can these proceedings deal with the argument
made as to balancing the interest of a pharmaceutical firm,
which has invested time and money in developing a product,
and the public interest in being able to acquire the drug at a
lower price.
Giving Pfizer the status to intervene might lead to the
conclusion that the Minister cannot adequately represent the
owner of any proprietary interest in pharmaceutical products
when an application is before the Minister for the licensing of a
similar generic product, and that in all such cases, the phar
maceutical firm having proprietary interests in the original
product should be made party-defendant in any application by
another party for the licensing of a similar product. The Act
does not so require and the Court should not create new law by
application of a rule of practice to require such party be added
as a defendant. Granting Pfizer status to intervene would create
a precedent which would likely lead to a multitude of similar
applications in almost every case where a competitor seeks a
notice of compliance.
It is not expedient to permit Pfizer to intervene as it is in an
adversarial position to the Minister in connection with the
decision to issue a notice of compliance. The Federal Court
Rules do not permit the addition of a party as an intervenor.
Pursuant to Rule 1716(2)(b) the would-be intervenor must be
added as a defendant, if at all. Pfizer has other opportunities to
have the Minister's decision reviewed.
CASES JUDICIALLY CONSIDERED
APPLIED:
Solosky v. The Queen, [1978] 1 F.C. 609; (1977), 17
N.R. 92 (C.A.); Rothmans of Pall Mall Canada Limited
v. Minister of National Revenue (No. 1), [1976] 2 F.C.
500 (C.A.).
CONSIDERED:
Re Doctors Hospital and Minister of Health et al.
(1976), 68 D.L.R. (3d) 220 (Ont. H.C.); Re Liverpool
Taxi Owners' Association, [1972] 2 All ER 589 (C.A.);
Nova Scotia Board of Censors v. McNeil, [1976] 2
S.C.R. 265; (1975), 55 D.L.R. (3d) 632; Re Starr and
Township of Puslinch et al. (1976), 12 O.R. (2d) 40
(Div. Ct.); Canadian Red Cross Society v. Simpsons
Limited, [1983] 2 F.C. 372 (T.D.).
REFERRED TO:
Smith Kline & French Canada Ltd. v. Frank W. Homer,
Inc. (1982), 68 C.P.R. (2d) 42 (F.C.T.D.).
COUNSEL:
Harry B. Radomski for plaintiff.
Brian R. Evernden for defendants.
Jack R. Miller for Pfizer Canada Inc.
SOLICITORS:
Goodman & Goodman, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
WALSH J.: In a motion heard in Toronto on
March 3, 1986, Pfizer Canada Inc. seeks to be
added as a party to the action brought by Apotex
herein, pursuant to Rule 1716(2) of the Federal
Court Rules [C.R.C., c. 663], and to intervene
pursuant to Rule 5 on the basis that it is a person
that ought to have received notice of a motion
brought by Apotex Inc. dated January 31, 1986,
the hearing of which has now been adjourned to
March 10, 1986. In its motion for leave to inter
vene Pfizer Canada Inc. also seeks leave to file a
written contestation of Apotex's statement of
claim, and that Apotex's motion be adjourned to
allow Pfizer Canada Inc. to cross-examine affiants
whose affidavits were filed in support of it.
The motion in which Pfizer wishes to intervene
is in the nature of mandamus sought by the plain
tiff directing the issuing of a notice of compliance
effective as of January 24, 1986 under Regulation
C.08.004 [Food and Drug Regulations, C.R.C., c.
870] made pursuant to the Food and Drugs Act,
R.S.C. 1970, c. F-27, in respect of Apo-Piroxicam,
10 mg and 20 mg capsules, or in the alternative a
declaration that the plaintiff is entitled to such
notice of compliance effective as of January 24,
1986. The significance of the retroactive date is
that the plaintiff contends that it will be excluded
from the Ontario July 1986 Formulary of generic
drugs made available to all pharmacists in Ontario
and that the same may apply with respect to
deadlines in other provinces, thereby causing the
plaintiff considerable damages for which it has
instituted proceedings in damages, of which the
motion to be heard on March 10 forms part. It
alleges that it had at said date complied with all
the necessary requirements of the statute and the
Regulations arising thereunder.
In proceedings brought by Pfizer Canada Inc.
against the Attorney General of Canada and the
Minister of National Health and Welfare and
Apotex Inc. under Court No. T-451-86 seeking an
injunction enjoining the Minister from issuing said
notice of compliance, the attorney representing the
Minister and Attorney General stated to the Court
that it was the intention to issue the notice of
compliance immediately unless prevented by the
issue of the interim injunction sought. Those pro
ceedings, commenced by an ex parte application
for an interim injunction, were presented in the
afternoon of February 27 in Montreal and were
adjourned to 9:30 a.m. on Saturday, February 28
in order to enable the attorney representing the
Attorney General of Canada and the Minister of
Health and Welfare, and the attorney of the
defendant Apotex, who were in Toronto, to be
present. After a hearing lasting all day the injunc
tion was refused in a judgment by Mr. Justice
Teitelbaum. It appears from the reasons for judg
ment that substantially the same arguments were
raised in that case as were raised before me in
Toronto by Pfizer Canada Inc. in seeking to inter
vene in the present proceedings. Pfizer Canada
Inc. which claims to be the originator of the drug
Feldene (its trade name for piroxicam) which it
manufactures and distributes and for which it has
a notice of compliance contends that the Minister
has acted illegally in determining whether or not
Apotex has fulfilled all the requirements of the
Food and Drugs Act and Regulations in agreeing
to issue the notice of compliance to Apotex of what
Apotex contends is an identical generic product.
Pfizer contends that the purpose of attempting to
obtain the interim injunction on such short notice
in Montreal was to hold matters in status quo
until its application to intervene in these proceed
ings in Toronto could be heard and dealt with.
Since it did not succeed in obtaining the interim
injunction there is nothing to prevent the Minister
from issuing the notice of compliance which he
indicated will be done and it may well be that
before the plaintiffs motion in which Pfizer
Canada Inc. seeks to intervene is heard in Toronto
on March 10 the notice of compliance, the issue of
which Pfizer Canada Inc. seeks to prevent will
already have been issued. While it may not be
issued retroactively to January 24, 1986 as the
plaintiff seeks by its motion this would appear to
be an issue between the plaintiff and the Minister.
What Pfizer Canada Inc. seeks is that the notice of
compliance should not be issued at all without
further inquiries by the Minister of National
Health and Welfare and the provision of further
information in the product brochure submitted by
Apotex in seeking its notice of compliance as
required by Regulation C.08.002 of the Food and
Drug Regulations. Apotex has a compulsory
licence from Pfizer for the manufacturing process
but Pfizer contends that it has done far more
research as to what may be undesirable side effects
of its use and furthermore that Apotex's proposed
generic drug may contain impurities and in fact
not be completely identical. An affidavit of Dane
Carmichael, its quality control manager, produced
only on March 3 at Toronto at the hearing of
Pfizer's present motion indicates that there is some
evidence of impurities in Apotex's product, not
found in Pfizer's, which are not identified and
therefore cannot be said to be not toxic or unusual.
His tests were only reported on February 26 how
ever, and presumably not yet brought to the atten
tion of the Minister. Apotex for its part contends
that in fact its product brochure contains more
warnings than that of Pfizer, and that Pfizer's has
to be amended to include such further warnings.
While Pfizer's counsel speaks eloquently of the
need of rigid enforcement of the Regulations by
the Minister of National Health and Welfare for
the protection of the public before issuing a notice
of compliance for a new drug it is also evident that
Pfizer has a substantial commercial and economic
interest in delaying as long as possible the market-
ing of the plaintiff's identical, or in any event
similar, product as a generic drug.
It was stated in Court by counsel that Pfizer has
also instituted proceedings against Apotex for
infringement of copyright in connection with ma
terial used by it in its application, allegedly taken
from Pfizer's product brochure. This is not the
first time that such an issue has come before the
Courts (see for example Smith Kline & French
Canada Ltd. v. Frank W. Horner, Inc. (1982), 68
C.P.R. (2d) 42 (F.C.T.D.)). While Pfizer
undoubtedly has a right to bring such proceedings
I fail to see how any alleged infringement of its
copyright by Apotex in any of its submissions to
the Minister of National Health and Welfare
when seeking the issue of a notice of compliance to
sell its competing product as a generic drug, can
justify the intervention of Pfizer in the proceedings
between Apotex and the Minister or that an inter
vention in the plaintiff's motion would be a proper
proceeding in which to decide Pfizer's copyright
infringement claims.
In addition to the injunction proceedings in
Montreal and the copyright infringement proceed
ings already referred to, Pfizer Canada Inc. has
instituted proceedings under section 28 of the Fed
eral Court Act [R.S.C. 1970 (2nd Supp.), c. 10]
against the alleged decision of the Minister to issue
a notice of compliance to Apotex. It would appear
to be highly inconsistent to institute section 28
proceedings which require that a decision has
already been made and at the same time seek to
intervene in the plaintiff's motion to be heard on
February 10 in Toronto to try to prevent the issue
of a notice of compliance. While there may or may
not be some delay between the decision to issue
such a notice and the actual issue of it, it would
appear that the second step is merely an adminis
trative one involving no further decision, and, as
already indicated, the notice may already have
been issued. Pfizer's counsel contended that it may
be that the Court of Appeal will decide that the
decision to issue the notice is not in fact a decision
to give it jurisdiction by virtue of section 28 unless
and until the actual notice of compliance is issued,
but this appears to be a very fine distinction and
Pfizer can hardly argue or seek the right to argue
the matter both ways. Moreover by virtue of sub
section 28(3) of the Federal Court Act if the
Court of Appeal has jurisdiction to review and set
aside the decision or order then the Trial Division
has no jurisdiction to entertain any proceeding in
respect of that decision or order.
It is evident that Pfizer is leaving no stone
unturned in its efforts to have an input into the
ministerial decision, hopefully before the notice of
compliance is issued. While recent jurisprudence
under the Canadian Charter of Rights and Free
doms [being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], which it is not necessary to go into in
detail here, has held that even a ministerial deci
sion is not immune from review if it is not made
fairly or reasonably, and certainly if it does not
comply with the law and regulations, it is clear
that an administrative decision should not lightly
be reviewed and set aside by the courts, as it is
only in very exceptional and unusual circum
stances that such a decision can be objected to and
overturned by judicial review. A party seeking
such a review must have a clear legal, as distinct
from a mere commercial or economic, interest in
the decision.
While the affidavit of William Heessels, Vice-
president and General Manager of the Phar
maceutical Division of Pfizer Canada Inc. sets out
the interest of the company in the licensing process
and the good name and reputation of itself and of
the product, its primary interest is clearly a com
mercial one. There is of course a philosophical and
policy argument which is frequently made as to
balancing the interest of a pharmaceutical firm,
which has spent considerable money and time on
research as a result of which a useful product has
been developed from the merchandising of which it
is entitled to profit, (especially since it must also
be compensated for abortive research into other
products which have never developed to the stage
capable of being used), with, on the other hand,
the interest of the public in being able to acquire
the drug made generically by a competitor for
what most probably will be a much lower price.
This is not an issue which can be dealt with in the
present proceedings however. If every time the
applicant for approval of a generic drug had to not
only convince the Minister of National Health and
Welfare that it was safe and appropriate to issue a
notice of compliance, it had to also confront and
overcome arguments and objections raised by the
originator of the product, which naturally does not
welcome such competition, the Minister of Nation
al Health and Welfare would be placed in an
almost untenable position.
While the Trade Marks Act, R.S.C. 1970, c.
T-10 specifically provides in section 37 for opposi-
tions to be made by an interested party on an
application for registration of a trade mark and
the Registrar must then consider such opposition
as well as the evidence submitted in connection
with the application, there is no similar provision,
and probably for good reason, in the Food and
Drugs Act. It is the responsibility of the Minister
and his staff of technical experts to apply the Act
and Regulations and protect the public, not to
protect commercial and economic interests of com
petitors or even originators of the product in ques
tion. While, as stated, any decision by him is not
completely immune from review, it would appear
without in any way deciding the issue on the
present motion, which only deals with Pfizer's
application to intervene, that the evidence that the
Minister has not complied with the duty imposed
on him in the present case is scanty at present to
say the least. At page 6 of his reasons for judg
ment in the injunction proceedings, file T-451-86
(supra) Mr. Justice Teitelbaum refers to an
affidavit of Mr. Heessels filed in connection with
those proceedings in which he states in paragraph
17:
I believe that such an agreement (the issuance of the notice of
compliance) may be illegal and contrary to the public interest
because it may not be supported by appropriate data.
Mr. Justice Teitelbaum notes that the words
"may" are used and that apparently Mr. Heessels
is not quite sure one way or the other. In argument
counsel for Pfizer stated that he had sought per
mission to participate or at least sit in on the
examination for discovery of Apotex's witnesses in
connection with their application for the notice of
compliance. This had been refused because Pfizer
was not a party to the proceedings which is why it
now seeks to intervene. He stated however that
these examinations lasted for some twenty (20)
hours. This is certainly not an indication that the
Minister's representatives did not give careful con
sideration to Apotex's application for certification.
In order for Pfizer to be allowed to intervene it
has to overcome two hurdles. The first of these is
whether it has status to do so and the second
whether, even if it has the necessary status it is
expedient that such intervention should be permit
ted. On the question of status counsel for Pfizer
referred to certain jurisprudence including the
Ontario case of Re Doctors Hospital and Minister
of Health et al. (1976), 68 D.L.R. (3d) 220 (Ont.
H.C.). In that case the hospital was one of several
hospitals whose approval to operate as a public
hospital was revoked by a decision of the Minister
of Health and the Lieutenant-Governor in Coun
cil. The hospital sought a declaratory judgment
that this decision should be revoked as having been
made without jurisdiction. Doctors employed by
the hospital sought to intervene. At page 232 of
the decision, in answer to the argument that doc
tors were in the same position as the hospital and
could not advance any argument being unique to
them, the Court stated:
On the other hand, from a practical point of view, they have an
intense and somewhat special interest in the outcome of these
proceedings.
Reference was made to the decision of Lord Jus
tice Denning in the case Re Liverpool Taxi Own
ers' Association, [ 1972] 2 All ER 589 (C.A.) in
which the taxi cab owners' association was held to
be entitled to seek writs of prohibition and certio-
rari as "persons aggrieved" it being stated, at page
595, that that included "any person whose inter-
ests may be prejudicially affected by what is
taking place", provided they have a genuine griev
ance. Reference was also made to the Supreme
Court case of Nova Scotia Board of Censors v.
McNeil, [1976] 2 S.C.R. 265; (1975), 55 D.L.R.
(3d) 632 which held that the factual situation has
some relevancy to the determination of the ques
tion of standing. Accordingly the Doctors Hospital
case held that the factual situation before the
Court was such that the doctors had a status to be
heard.
Counsel for Pfizer also referred to the case of
Re Starr and Township of Puslinch et al. (1976),
12 O.R. (2d) 40 (Div. Ct.) dealing with town
planning in which parties sought to be added to the
proceedings under rule 136 of the Ontario rules
[Rules of Practice, R.R.O. 1970, Reg. 545] which
resembles Federal Court Rule 1716. At page 42,
the Court stated:
There is no question that both applicants have a considerable
commercial interest in the result of the judicial review applica
tion, because if that application should be successful both will
be faced with the problem, not only of a rezoning application,
but an amendment to the official plan and all of the consequent
difficulties that might arise therefrom.
and at page 43:
It is equally clear that under another interpretation any person
whose rights are directly and substantially affected by the
result of the litigation is a person "whose presence is necessary
in order to enable the court effectually and completely to
adjudicate upon the questions involved in the action".
In the case of Canadian Red Cross Society v.
Simpsons Limited, [1983] 2 F.C. 372 (T.D.),
which originated in Ontario as does the present
action, Mr. Justice Mahoney, then in the Trial
Division pointed out that the Federal Court Rules
do not permit the adding of a party as an interve-
nor and that Rule 5 cannot remedy this because
pertinent Ontario rules are similar to the Rules of
this Court. He points out that the gap rule has
been invoked primarily to permit the joinder of
intervenors in the Province of Quebec, where the
Code of Civil Procedure contemplates such a step,
but that in this Court the would-be intervenor
must be added as a defendant, if at all, pursuant to
Rule 1716(2)(b). In that case in permitting Twen-
tieth Century-Fox to be added as a defendant the
judgment stated, at page 376:
Fox has here a direct interest in the very issue to be
determined. The decision here, if the plaintiff succeeds, will
directly affect Fox's rights and pocket-book. While I accept
that the present defendant will defend the action, its interest in
doing so is obviously not to be compared to Fox's. Fox ought
not be in the position of defending its rights vicariously. To
require it to do so would entail a risk that its interests would
not be adequately represented.
Applying this to the circumstances of the present
case giving Pfizer the status to intervene as a
defendant might well require a general conclusion
that the Minister of National Health and Welfare
cannot adequately represent the owner of any pro
prietary interest in pharmaceutical products when
an application is before the Minister for the licens
ing of a similar generic product, and that in all
such cases the pharmaceutical firm having pro
prietary interests in the original product should be
made a party-defendant in any application by
another party for the licensing of a similar or
competing product. As already stated, the statute
does not so require, and the Court should not
create new law by application of a rule of practice
to require that such a party be added as a defend
ant. While Pfizer of course argues that it is only
seeking to intervene on the facts of this particular
case, in which it contends that the Minister has not
properly applied the Regulations in considering
Apotex's application, a finding favourable to
Pfizer on the present motion would create a prece
dent which would likely lead to a multitude of
similar applications in almost every case where a
competitor seeks a notice of compliance to market
as a generic drug' a product similar to that of the
originator of it.
Jurisprudence referred to by the plaintiff estab
lishes that for a party to have status to intervene it
must have a direct legal interest as distinct from
an economic interest. The plaintiff's counsel points
out that in the Doctors Hospital case the doctors
in question would be losing their employment
whereas in the present case Pfizer can of course
continue to sell its product, the potential reduction
of sales representing merely an economic interest.
Reference was made to the Federal Court of
Appeal case of Solosky v. The Queen, [1978]
1 F.C. 609; (1977), 17 N.R. 92 in which the
Criminal Lawyers' Association of Ontario sought
to intervene in an appeal by a prisoner on the
question of the confidentiality of his letters to and
from his lawyer. At page 611 F.C.; at page 94
N.R. the judgment states:
In my view, the applicant has failed to establish a status
entitling it to intervene in this action. In order to acquire such a
status, it would be necessary for the applicant to show that it is
an aggrieved party and that it has a proprietary interest in
subject appeal.
On the same page reference is made to the judg
ment of Mr. Justice Le Dain in the case of Roth-
mans of Pall Mall Canada Limited v. Minister of
National Revenue (No. 1), [1976] 2 F.C. 500
(C.A.), in which he stated, at page 506:
The appellants do not have a genuine grievance entitling them
to challenge by legal proceedings the interpretation .... Such
interpretation does not adversely affect the legal rights of the
appellants nor impose any additional legal obligation upon
them. Nor can it really be said to affect their interests prejudi-
cially in any direct sense.
In the Rothmans case an extensive review was
made of preceding jurisprudence. The headnote
summarizes the finding in part and states [at page
501]:
A person should not have the right to interfere with an official
action affecting an existing competitor solely to prevent the
competitor from obtaining some advantage, particularly where
the complainer is free to seize the same advantage. The public
interest in competition is an important factor in the exercise of
discretion as to whether to recognize standing in a competitive
relationship.
Application of this jurisprudence leads to the
conclusion that it is at least doubtful whether
Pfizer has any status to intervene by way of being
named as a defendant in the present proceedings
so as to enable it on the plaintiff's motion to
oppose the actual issue of the notice of compliance
which the defendant, the Minister, proposes to
issue and may in fact have already issued at the
time the hearing on the plaintiffs motion takes
place on March 10.
On the second issue, I have concluded that even
if Pfizer had legal status to intervene, which I
seriously doubt, the intervention should not be
allowed as the plaintiffs motion would not be the
most appropriate one for hearing of the objections
which Pfizer wishes to make to the Minister's
decision to issue the notice of compliance. While
Pfizer is of course in an adversary position with
respect to the plaintiff Apotex, it would appear
that it wishes to place itself in an adversary posi
tion with respect to the Minister in connection
with the decision to issue the notice of compliance
to Apotex. Failure to permit Pfizer to intervene in
the present proceedings between the plaintiff
Apotex and the Minister does not deprive Pfizer of
all opportunity to have the decision of the Minister
reviewed. It is not the function of the Court to
advise Pfizer as to what appropriate proceedings it
can bring or whether prerogative writs could be
used. Pfizer has already adopted one possible
recourse by the section 28 proceedings which it has
instituted.
In conclusion for all of the above reasons Pfiz-
er's motion is dismissed with costs.
ORDER
The motion of Pfizer Canada Inc. to be added as
a party to intervene in the present proceedings is
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.