The Federal Court has refused to strike a claim brought by Apotex against current and former ministers and civil servants working at the Ministry of Health.
Apotex has brought its claim pursuant to paragraph 17(5)(b) of the Federal Court Act, which provides that the Federal Court has jurisdiction over "proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown". Apotex's allegations relate to relief against officers of the Crown for claims of misfeasance in public office, negligence, conspiracy, defamation and monetary relief in public law.
As described by the Court, the background to this litigation involves several earlier decisions and the judicial reviews of those decisions. On September 30, 2014, products from two overseas Apotex plants were subject to an import ban by Health Canada. The Federal Court quashed the import ban on October 14, 2015 (Apotex Inc v Canada (Health), 2015 FC 1161) finding that the Minister had acted for an improper purpose in implementing the ban (i.e., to ease media and political pressure) and had failed to act in accordance with the principles of natural justice. The Court also ordered the Minster and Health Canada to retract the Public Statements.
In June 2015 Health Canada conducted inspections of the two plants and amended the terms and conditions of the first import ban. By Judgment dated June 15, 2016 (Apotex Inc v Canada (Health), 2016 FC 673), the Court declared the amendments unlawful, on the basis that it was “infected” by the improper purpose that had motivated the original Import Ban and that there was no evidence to support implementing or maintaining the amendments.
Health Canada also refused to issue further NOCs for products originating from the two plants. By Judgment dated March 27, 2017 (Apotex v Canada, 2017 FC 315), the Court found that Health Canada's continued refusal to grant NOCs for Apo-Varenicline and Apo-Sitagliptin, the only two products for which the TPD continued to require additional data integrity information as of the date of the hearing before the Federal Court, was neither improper nor unreasonable.
Ultimately, the Court refused to strike Apotex's claims for a lack of jurisdiction. The Court held that the rights to sell, import, and manufacture drugs are entirely created by federal statute. Furthermore, the Food and Drugs Act and Regulations were said to define the scope of the Minister's and Health Canada's authority and create the metric against which the lawfulness of their actions will be measured. On this basis, the Court did not find it was plain and obvious that the Federal Court lacks jurisdiction to hear the claims made against the individual defendants.