Seeking to Intervene? Proceed Quickly with Unique and Valuable Insights or Else

On February 2, 2015, Justice Stratas released his reasons for dismissing Canada’s Research Based Pharmaceutical Companies (“Rx&D”) motion for leave to intervene in an appeal from the judgment of the Federal Court (see our previous blog post here). In that decision Justice Hughes held that Canadian Patent No. 2,289,753 was not eligible to be listed on the Patent Register against ViiV’s KIVEXA and TRIZIVIR fixed dose combination products.

Rx&D argued that the Federal Court’s decision may affect the listing of many patents on the Patent Register and that if the judgment is not set aside a patent claiming a single medicinal ingredient of a fixed-dose combination product will not be eligible for listing. This, Rx&D claimed, would have detrimental effects on the innovative pharmaceutical industry and the health of Canadians.

Rx&D argued they could inform the Court about the consequences of the decision under appeal and provide insight on the 2006 amendments to the Patented Medicines (Notice of Compliance) Regulations and the Minister of Health’s 2007 Guidance Document dealing with fixed dose combinations. In dismissing Rx&D’s motion, Justice Stratas held that a key consideration in whether to allow a motion to intervene is whether the proposed intervener will advance different and valuable insights and perspectives that will further the Court’s determination of the matter. Justice Stratas found that Rx&D cannot offer different and valuable insights and perspectives as the Minister of Health is an active participant in the appeal and can speak to the issues directly. Justice Stratas further held that Rx&D’s insights and perspectives on the issue of consequences were already before the Court in the form of an affidavit from its Chief of Staff and Vice President.

Justice Stratas also expressed concern over the timeliness of Rx&D’s motion to intervene:

[10] One of the factors to consider on a motion such as this is its timeliness:

Is the proposed intervention inconsistent with the imperatives in Rule 3, namely securing “the just, most expeditious and least expensive determination of every proceeding on its merits”? For example, some motions to intervene will be too late and will disrupt the orderly progress of a matter. Others, even if not too late, by their nature may unduly complicate or protract the proceedings. Considerations such as these should now pervade the interpretation and application of procedural rules: Hryniak v. Mauldin, 2014 SCC 7 [[2014] 1 S.C.R. 87]. (Pictou, supra at paragraph 10.)

[11] Quite aside from those considerations, the timeliness of a motion to intervene can shed light on the other factors to be considered. Those really concerned about a proceeding, who have much to say about it, and who are concerned that no one else will say it, proceed quickly. Here, that is not the case, and the Association has not explained its delay.

A copy of Justice Stratas’s Reasons can be found here.

Teva was represented by David Aitken, Marcus Klee and Scott Beeser of Aitken Klee.