Schering Canada Inc. v. Nu-Pharm Inc.
T-1708-95
Muldoon J.
24/6/96
13 pp.
Third notice of compliance with respect to same two patents-Application, in response to third notice, to prohibit Minister from issuing notices of compliance for patented medicine "loratadine" while prohibition proceedings with respect to first notice not yet resolved-Upon reviewing case law in matter, seems Patented Medicines (Notice of Compliance) Regulations can produce abuse in manner in which Court unable to cure it; such that, unless "first person" responds promptly to every notice of allegations, such person will miss out on opportunity to obtain prohibition against Minister's issuance of notice of compliance-Issue herein whether third notice of allegations may be served in regard to same patents where third notice almost identical to previous allegations-Court should, solely on the grounds of unfair harassment and clearly "for better administration of the laws of Canada", prohibit Minister from issuing notice of compliance to harassing seeker of same-Inherently abusive régime where Court has to go deeply into up to six prohibition proceedings regarding one patent, in order to determine if there be any validity to each-Reform clearly needed-Following measures suggested: (1) statutory confidentiality provision where applicant for notice of compliance alleging different process; (2) "second person" should not be allowed to have subsequent notice of allegations regarding particular patent while earlier notice concerning same patent has provoked not yet resolved prohibition proceedings-Although notice of allegations not Court process, nevertheless document having legal effect in contemplation of law of Canada-Relief granted ex debito justiciae and for better administration of justice: order declaring notice of allegations void, of no effect and not provided in compliance with Regulations-Despite declaration, all proceedings herein stayed until after final determination of proceedings between same parties in Court file T-2274-93 (first notice of allegations)-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 5(3)(b).