Merck Canada inc. c. Procureur général du Canada, 2020 QCCS 4541


Read full decision. Summary prepared by Alan Macek:

In an appeal for judicial review, the seven plaintiff pharmaceutical companies contest the validity of sections 79 to 103 of the Patent Act, of the entire Patented Medicines Regulations and amendments published August 21, 2019 in respect of the latter Regulations which shall enter into force on 1st January 2021 [deferred to July 1, 2021 -AM]. ... The applicants are of the opinion that these provisions are unconstitutional since they would not fall under any power conferred on the federal government by the Constitution Act, 1867. ... The Attorney General of Canada maintains that the federal jurisdiction provided for in section 91(22) of the Constitution Act, 1867 extends to all matters relating to patents, including the price regulation of patented products. ... As soon as it becomes clear to the government that the prices of certain patented drugs are excessive (in the sense of unacceptable and unreasonable) and when it is logical to conclude that the existence of patents is the cause, it should be inferred that the Amendments are truly linked to patents and come under this federal jurisdiction. ... However, in the case of the new requirements provided for in new sections 4(4)a) and 4(4)b) of the Regulations, a step too far has been taken by the federal government in that the provincial powers relating to the drug insurance, property and civil rights, and matters of a purely local or private nature, are hit head-on rather than incidentally. The constitutional balance is thereby upset ... (Based on a translation)


Canadian Intellectual Property