Takeda Canada Inc. v. Apotek Inc., 2023 FC 63 (Dexlansoprazole*)
Associate Justice Tabib - 2023-01-23
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The Plaintiff, Takeda, seeks an Order consolidating two actions commenced pursuant to section 6 of the Patented Medicines (Notice of Compliance) Regulations. Both actions involve the same parties, drug product and Abbreviated New Drug Submission. However, the first action was instituted in February 2021 and is already scheduled to proceed to trial in September 2023. The second action, was commenced on October 5, 2022. It is common ground between the parties that this latter action cannot reasonably be ready to proceed to a trial in 2023. Thus, granting Takeda’s motion necessarily entails abandoning the October 2023 trial dates in favour of a later consolidated trial in early 2024, over 24 months following the start of the First Action. ... I am accordingly not satisfied that the Regulations impose a positive obligation on a second person to serve all NOAs listed against a Reference Product at the same time or within such time as will ensure that all resulting litigation be determined within 24 months. This is not to say that decisions generics might take in respect of the timing of NOAs can never be questioned or lead to some sort of procedural sanctions. However, given that Apotex has not directly breached an obligation under the Regulations, and that its conduct was not dictated by improper motives, I find no reason to depart from established jurisprudence to the effect that the Court will not impose consolidation where doing so would cause prejudice to a party.
Decision relates to:
- T-151-22 - TAKEDA CANADA v. APOTEX, TAKEDA PHARMACEUTICAL CO & TAKEDA PHARMA USA