Case information

Constitutional law – Division of powers – Administrative law – Boards and tribunals – Patented Medicines Prices Review Board – Patentee challenging constitutionality of statutory provisions establishing Board and its powers pertaining to pricing of patented medicines – Whether price control scheme for medicines in the Patent Act, including power of Patented Medicines Prices Review Board to order price reductions and confiscation of past revenues, falls within jurisdiction of Parliament under s. 91 (22) of the Constitution Act, 1867 – Whether a party is permitted to seek prerogative relief, including prohibition, in Federal Court or provincial superior court in a case raising a constitutional question without first raising constitutional issue before a statutory board ith jurisdiction over merits of a dispute.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Alexion Pharmaceuticals Inc., (“Alexion”), manufactures a drug called Soliris, used to treat two rare life threatening medical conditions. The Patented Medicines Prices Review Board (“Board”) commenced proceedings against Alexion and issued a Notice of Hearing to determine whether Alexion had been selling Soliris at an excessive price between 2012 and 2014. The Board was created pursuant the Patent Act, R.S.C. 1985, c. P-4. Sections 79 through to 103 of the Patent Act provide for, inter alia, the mandate and jurisdiction of the Board, remedies available to the Board and enforcement of orders. In a separate proceeding, Alexion sought declaratory relief from the Federal Court that the price regulation scheme created by the Patent Act was ultra vires, exceeded the powers granted to Parliament under s. 91(22) of the Constitution Act, 1867 and violated provincial jurisdiction over property and civil rights under s. 92(13). Further, Alexion sought an order of prohibition precluding the Board from proceeding with a hearing. The Attorney General of Canada (“AG”) brought a motion to strike Alexion’s application based on a line of jurisprudence that determined that those sections were both intra vires and constitutional. This motion was granted and the decision was upheld on appeal.