Merck Canada inc. c. Procureur général du Canada, 2022 QCCA 240


Read full decision. Summary prepared by Alan Macek:

This case concerns the scope of the federal government's jurisdiction to regulate the prices of patented medicines sold in Canada [appeal from 2020 QCCS 4541]. ... It should be noted that the question at the heart of the appeal is not whether it is desirable that drug prices be regulated, but what level of government can act in this matter. ... In sum, the pith and substance of the current regime is the control of excessive prices for patented medicines to alleviate the price effect of the monopoly conferred by the patent, while the pith and substance of the 2019 Regulatory Amendments has two aspects: (a) on the one hand, with the aim of reducing prices, improving the existing excessive price control regime by modifying the list of foreign countries used for price comparison and taking into account the confidential discounts granted to major public insurers; and (b) on the other hand, to impose significant and arbitrary price reductions so that patented medicines are more affordable. ... [N]ew ss. 4(4)(a) and (b) of the Patented Medicines Regulations, introduced by the 2019 Regulatory Amendments, exceed the constitutional jurisdiction of the federal government in that they interfere in areas of provincial jurisdiction, namely commercial contracts, marketing and sales of consumer products. ... This is why I cannot agree with the contentions of the appellants and the Attorney General of Quebec that the new foreign country schedule introduced into the Patented Medicines Regulations by the 2019 Regulatory Amendments is unconstitutional for the simple reason that it will drive down the prices of patented drugs. (based on a translation)


Canadian Intellectual Property