PRACTICE |
Judgments and Orders |
Reversal or Variation |
AB Hassle and Astra Pharma Inc. v. Canada (Minister of National Health and Welfare)
T-1446-93
2004 FC 377, Russell J.
12/3/04
17 pp.
Motion by AstraZeneca Canada Inc. (AstraZeneca or applicant) for order varying protective order made in Court file T-1446-93 (application to prohibit issuance of notice of compliance to Apotex) allowing use of information subject to protective order in Court file T-260-04 (application to quash Apotex's notice of compliance), subject to appropriate protective terms--Motions relating to dispute concerning Apotex's Apo-Omeprazole brand of omeprazole capsules and several of AstraZeneca's relevant patents--Protective order contained number of provisions designed to guard against improper disclosure and use of Apotex's confidential information--All such confidential information produced should have been returned to Apotex or destroyed by end of May 1999--Applicant says information on Court file T-1446- 93 subject to protective order relevant to judicial review challenge of notice of compliance in T-260-04-- Applicant also says access to information will result in no prejudice to Apotex and not to grant relief sought would be travesty of justice because it would mean Apotex could shield itself in event it has used different formulations in relation to relevant patents--Furthermore, applicant says technical grounds of resistance advanced by Apotex should not be allowed to defeat compelling judicial review and public interest requiring relevant formulation information to be before Court when judicial review heard on T-260-04--Matter of relevance, appropriateness of remedies better left to judge hearing judicial review--Smith, Kline and French Laboratories Ltd. v. Canada (Attorney General), [1989] 3 F.C. 540 (T.D.), affd (1997), 74 C.P.R. (3d) 165 (F.C.A.) summarizing relevant legal principles to be applied on such motions--Whether, on facts of this case, there is some change in circumstances or compelling reason to vary protective order--Issue of different formulations sufficiently compelling reason to vary protective order--Strictly speaking, any change in circumstance not in relation to issues between parties in action for which confidential information produced--But nor is it completely new circumstance involving different parties, and nature and history of dispute over relevant patents makes it difficult to sever and isolate different actions in way suggested by Apotex--Smith, Kline and French Laboratories Ltd. not ruling out variations even where "purposes for access is unrelated in any way and is . . . collateral or ulterior to the action in which the documents are filed and sealed" provided reasons for varying order "truly compelling"--This not case where third party seeking access to evidence for completely collateral purpose, but latest round in long fight that requires use of information in T-1446-93 to enable judge hearing judicial review in T-260-04 to dispose of key issue of whether Apotex relied on different formulations in respect of omeprazole--Apotex indicating "confidence in the integrity of the judicial process" at stake here--This requires confidential information be accessed and available to judicial review process--To do otherwise would be to essentially grant Apotex immunity in relation to grounds applicant raised for challenging NOC--Sufficiently compelling reason to vary protective order.