SCC and private label generics

The Supreme Court of Canada has granted leave to appeal from Shoppers Drug Mart Inc. v. Ontario (Health and Long-Term Care), 2011 ONCA 830 relating to provincial regulations on pharmacies selling ‘private label’ generic drugs.

The decision under appeal relates to Ontario’s Drug Interchangeability and Dispensing Fee Act and the Ontario Drug Benefits Act and particularly regulatory changes made in 2010 which included provisions on private label generic drugs. From the Ontario Court of Appeal decision:

[28] The impugned DIDFA Regulation, R.R.O. 1990, Reg. 935, provides:

9(1) A product that is a private label product shall not be designated as interchangeable.

In its decision, theĀ  Ontario Court of Appeal reversed the Divisional Court and held that the provisions were intra vires the enacted legislation:

[73] In the last decade, on two occasions this court has strongly cautioned that in a major public policy domain involving the intersection of health care and public finance, courts must exhibit genuine restraint in reviewing statutes and regulations. With respect, the Divisional Court did not show such restraint in this case. Its premises and analysis were not faithful to the principles underlying the two Apotex cases of 2004 and 2007.

[74] The appeal is allowed and the application for judicial review is dismissed. Section 12.0.2 of the ODBA Regulation and s. 9 of the DIDFA Regulation are intra vires their parent statutes and in full force and effect.

Today’s Supreme Court leave decisions related to two proceedings at the Supreme Court both from the same Ontario Court of Appeal decision:

  • Shoppers Drug Mart Inc., et al. v. Minister of Health and Long-Term Care, et al. (34649) and
  • Katz Group Canada Inc., et al. v. Minister of Health and Long-Term Care, et al. (34647).