Apotex Inc. v. Astrazeneca Canada Inc

Apotex Inc. v. Astrazeneca Canada Inc

The Prothonotary’s decision was not clearly wrong and is upheld: the counterclaim alleging negligence in how the Minister administered the NOC Regulations is not a plain and obvious collateral attack requiring judicial review, subsection 8(6) does not prima facie bar a private law negligence claim, and the pleadings disclose a potentially valid duty of care issue requiring factual determination at trial rather than strike at the pleadings stage.

Citation
2009 FC 120
Parties
Plaintiff; Defendant to Counterclaim: Apotex Inc.; Defendant; Plaintiff by Counterclaim: AstraZeneca Canada Inc.; Plaintiff by Counterclaim: Aktiebolaget Hassle; Plaintiff by Counterclaim: AstraZeneca AB; Defendant to Counterclaim: Her Majesty the Queen; Defendant to Counterclaim: The Attorney General of Canada
Court
Federal Court
Jurisdiction
Canada
Judgment Date
4 February 2009
Procedural Posture
Civil (administrative/regulatory/patent) / Appeal From Prothonotary Order (motion to Strike)
Outcome
Appeal dismissed; Prothonotary’s Order dated August 19, 2008 upheld
Legal Topics
NOC Regulations, Duty of Care, Judicial Review, Statutory Immunity, Motion to Strike
Source Language
English
Administrative Law Patent Law Tort Negligence Regulatory Law Civil Procedure NOC Regulations Duty of Care Judicial Review +2 more

Case Brief

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Parties

Apotex Inc.

Plaintiff; Defendant to Counterclaim

AstraZeneca Canada Inc.

Defendant; Plaintiff by Counterclaim

Aktiebolaget Hassle

Plaintiff by Counterclaim

AstraZeneca AB

Plaintiff by Counterclaim

Her Majesty the Queen

Defendant to Counterclaim

The Attorney General of Canada

Defendant to Counterclaim

Procedural Posture

Civil (administrative/regulatory/patent) / Appeal From Prothonotary Order (motion to Strike)

Legal Issues

  1. 1 whether the counterclaim is a collateral attack requiring judicial review
  2. 2 whether subsection 8(6) of the NOC Regulations immunizes the Minister from negligence claims
  3. 3 whether the Minister owed a private law duty of care to AstraZeneca (proximity issue under Anns/Cooper)

Ratio Decidendi

The Prothonotary’s decision was not clearly wrong and is upheld: the counterclaim alleging negligence in how the Minister administered the NOC Regulations is not a plain and obvious collateral attack requiring judicial review, subsection 8(6) does not prima facie bar a private law negligence claim, and the pleadings disclose a potentially valid duty of care issue requiring factual determination at trial rather than strike at the pleadings stage.

Court Disposition

Appeal dismissed; Prothonotary’s Order dated August 19, 2008 upheld

Orders

  • The appeal by the Crown of the Prothonotary’s Order dated August 19, 2008 is dismissed
  • Costs of this motion shall be to AstraZeneca, in the cause