Imperial Chemical Industries PLC v. Apotex Inc.
T-1513-88
Rothstein J.
17/3/95
9 pp.
Preliminary question of law whether sale by defendant for consumption in Canada, after effective date of legislation, December 7, 1987, of medicine Atenolol imported into Canada prior to that date, prohibited by Patent Act, s. 39.11(1) -- First notice of compliance for Atenolol obtained by plaintiff on March 10, 1983--Plaintiff claiming exclusivity in Canadian market place for eight years from that date, that is to March 10, 1991 -- Whether Apotex could sell Atenolol between date of first sale, August 1, 1988 and March 10, 1991 (prohibited period) -- Interlocutory injunction initially sought by plaintiff to prevent Apotex from selling Atenolol in Canada during prohibited period -- Rouleau J. granting interlocutory injunction -- Appeal by Apotex to F.C.A. allowed in part -- Apotex permitted to continue to sell in Canada balance of 1,050 kg. of Atenolol imported prior to December 7, 1987 -- Mahoney J.A. taking contrary view to that of Rouleau J. -- Whether s. 39.11 prohibited only importation of Atenolol by Apotex after December 7, 1987 or whether it prohibited sale of Atenolol by Apotex after December 7, 1987 irrespective of date of importation -- Limited period of exclusivity for patentees purpose of legislation--Parliament not intending to prohibit more than what is said to be prohibited under s. 39.11(1), namely importation of medicine, if medicine for sale for consumption in Canada, on coming into force of subsection -- S. 39.11(1) prohibiting only importation of medicine for sale for consumption in Canada on and after date of coming into force, December 7, 1987 -- Not affecting sale of medicine properly imported before then -- Provision worded to prohibit importation, not sale -- No mention of retroactive application of provision -- If wording of s. 39.11(1) oversight, open to Parliament to amend legislation -- Open to plaintiff, when aware Apotex selling Atenolol in Canada, contrary to its view of intent of legislation, to ask Parliament to amend it -- Rules on statutory interpretation requiring ambiguity before being invoked -- Provision in question not ambiguous -- Nothing unusual about statutes expressing general objective also containing provisions being exceptions to objectives -- Not unusual ministerial statements, background papers refer to main thrust of legislation, not to narrow exceptions -- Question answered in favour of Apotex--Patent Act, R.S.C., 1985, c. P-4, s. 39.11(1) (as enacted by R.S.C., 1985 (3rd Supp.), c. 33, s. 15; as rep. by S.C. 1993, c. 2, s. 3).