Latest updates

Federal Court finds PMPRB unreasonable in determining that patent pertains to medicine
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • December 18 2017

The Federal Court recently found that the Patented Medicine Prices Review Board's assessment that a patent pertained to Galderma Canada's Differin was unreasonable, as it had failed to consider the entire patent. As a result, the court quashed the board's decision requiring Galderma to file pricing information for Differin.

Recent developments in Alexion cases
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • December 18 2017

The Federal Court of Appeal recently heard Alexion's appeal of a decision striking out its constitutional challenge to the price regulation scheme and confiscatory powers found in the Patent Act. A decision is under reserve. Alexion also has a pending judicial review of the Patented Medicine Prices Review Board's decision that it sold Soliris (eculizumab) at excessive prices.

Federal Court finds PMPRB unreasonable in determining that patent pertains to medicine
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • December 13 2017

The Federal Court recently found that the Patented Medicine Prices Review Board's assessment that a patent pertained to Galderma Canada's Differin was unreasonable, as it had failed to consider the entire patent. As a result, the court quashed the board's decision requiring Galderma to file pricing information for Differin.

New pharmaceutical patent linkage litigation scheme
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • December 13 2017

The recent amendments to the Patented Medicines (Notice of Compliance) Regulations introduced a new scheme for pharmaceutical patent linkage litigation in Canada regarding generic challenges. The scheme is now much closer to the US Hatch-Waxman scheme, but with a number of key differences.

Court dismisses health and safety charge given due diligence
Dentons
  • Litigation
  • Canada
  • December 12 2017

An Ontario court recently dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence. The court decided that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. While no training courses were available for the task in question, the employer was entitled to rely on the experience of the worker.

Win for employers: Supreme Court rejects union's request for right to consultation in accommodation process
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • December 06 2017

The Supreme Court recently dismissed an application from the Telecommunications Workers' Union for leave to appeal the decision that unions have no independent legal right, separate and apart from their collective agreement rights, to be involved in every unionised employee's accommodation request. The decision is a victory for employers, employee privacy and the accommodation process.

Stay out of it – sophisticated parties can contract out of arbitration legislation
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • November 30 2017

The Supreme Court of Newfoundland and Labrador recently dismissed an application by the province under Sections 14 and 34(2)(a)(iii) of the Arbitration Act. The court held that the parties had legally contracted out of the act, narrowing the circumstances in which a court could set aside an arbitral award. The decision furthers the general theme of recent Canadian jurisprudence, which has emphasised party autonomy and deference to reasonable arbitral decisions.

Avoiding liability risks on termination for sexual harassment
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 29 2017

The risks to employers in sexual harassment cases can be big. Potential liability can arise from any decision and employers may find themselves having to make tough decisions on tight timelines. The key to ensuring an appropriate response is to be prepared. Preparation will permit an employer to take a proactive approach, as opposed to a reactive stance, when sexual harassment is discovered. This is a lesson that can be drawn from a recent Alberta Court of Queen's Bench case.

Court rejects Apotex's application for judicial review of omeprazole magnesium tablet submission
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • November 29 2017

The Federal Court recently rejected Apotex's application for judicial review regarding Health Canada's review of its omeprazole magnesium tablet regulatory submission. Apotex had applied for reconsideration, which was cancelled due to disagreement on an eligible question to pose to the reconsideration panel. Apotex had focused the question solely on safety and efficacy, while the minister of health had required that the question consider bioequivalence.

Patented Medicine Prices Review Board update
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • November 27 2017

The Patented Medicine Prices Review Board recently announced the release of a hearing panel's decision regarding the pricing of a breakthrough drug and the publication of a report which compares lists of drugs covered by the public drug plans to determine the extent of overlap in drug coverage. Further, in response to an unopposed request filed by the board to do so, a hearing panel discontinued an excessive pricing proceeding relating to Apotex's Apo-Salvent CFC Free.

Court declares that administrative errors during application cannot void issued patent
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • November 27 2017

The Federal Court of Appeal recently ruled that Pfizer's failure to pay the correct issue fee did not render its patent void. In the context of a Section 8 case, Apotex had brought a partial summary judgment motion to have Pfizer's patent declared void for failure to comply with the Patent Act. The court cited the general principle that "pre-patent issuance defects in the administrative process for applying for a patent cannot be relied upon by an alleged infringer to render a patent void".

Ontario bill proposes mandatory disclosure of financial relationships
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • November 22 2017

The Ontario legislature recently introduced Bill 160, which – if passed – will enact the Health Sector Payment Transparency Act 2017. The act will require the disclosure of financial relationships between healthcare professionals and pharmaceutical or medical device manufacturers and the reporting of various information. More details, such as the manner and frequency of reporting, will be prescribed by regulation.

Patented Medicine Prices Review Board update
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • November 22 2017

The Patented Medicine Prices Review Board recently announced the release of a hearing panel's decision regarding the pricing of a breakthrough drug and the publication of a report which compares lists of drugs covered by the public drug plans to determine the extent of overlap in drug coverage. Further, in response to an unopposed request filed by the board to do so, a hearing panel discontinued an excessive pricing proceeding relating to Apotex's Apo-Salvent CFC Free.

Erosion of employers' managerial rights
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 22 2017

An arbitrator and the Quebec Superior Court recently challenged the well-established principle in labour relations that an employer retains managerial rights in the absence of limiting provisions in a collective agreement. The arbitrator and the court found that the employer had violated the collective agreement because it contained no clear provision that allowed it to act as it did. Therefore, the question remains: what is happening to managerial rights and what measures can employers take to protect them?

Federal Court of Appeal releases decision on application of GAAR rule
Thorsteinssons LLP
  • Corporate Tax
  • Canada
  • November 17 2017

The Federal Court of Appeal recently overturned a Tax Court decision which had found that a number of transactions undertaken by the Univar corporate group constituted abusive tax avoidance under the General Anti-avoidance Rule (GAAR). The judgment contains several important points concerning the analysis and application of the GAAR and will undoubtedly be relied on by taxpayers in future.

Once bitten, twice shy: greater scrutiny ahead for employees misclassified as contractors
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 15 2017

Ontario has announced that it will be cracking down on employers that misclassify workers as independent contractors as part of its Bill 148: Fair Workplaces, Better Jobs Act 2017. The bill will place the burden on employers to prove that workers are not employees for the purposes of the Employment Standards Act, reflecting a growing concern among legislators across Canada that workers and employers are operating outside of the traditional employer-employee framework.

Health Canada update
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • November 15 2017

Health Canada recently issued a notice of intent soliciting comments on possible changes to the Food and Drug Regulations relating to pharmaceutical equivalence and an updated notice on its interim policy regarding the interpretation of a medicinal ingredient. In addition, it recently solicited online comments regarding proposed pre-market transparency initiatives for human prescription drugs.

Government issues statement of intended actions to implement CETA
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • November 15 2017

Global Affairs Canada recently published its statement of intended actions regarding the implementation of the Canada-EU Comprehensive Economic and Trade Agreement, which has been provisionally applied since September 21 2017. The document summarises the Canadian government's position on its obligations and how it intends to implement the treaty. A number of the document's chapters are relevant to the pharmaceutical industry.

Idenix seeks leave to appeal from Supreme Court in SOVALDI dispute
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • November 13 2017

The Federal Court of Appeal recently affirmed a trial decision relating to two competing patents concerning Gilead's SOVALDI (sofosbuvir). The Court of Appeal upheld the validity of Gilead's Patent 2,527,657 and declared Idenix's Patent 2,490,191 invalid on the basis of insufficiency of disclosure and inutility. Idenix has applied to the Supreme Court for leave to appeal.

British Columbia Labour Relations Board rules on secondary picketing at non-striking facility
Fasken Martineau DuMoulin LLP
  • Employment & Benefits
  • Canada
  • November 08 2017

In British Columbia secondary picketing is unlawful unless the striking union can obtain a declaration that the secondary business or location has allied itself with the struck employer. Suppliers and other affected businesses can arrange their affairs to work around strikes and lockouts without being declared an ally – so-called 'self-help' is permitted by such third parties. A recent British Columbia Labour Relations Board decision has analysed self-help in a new way, making it more difficult to avoid secondary pickets.