Case information
Conduct a refined search of the Supreme Court of Canada database to obtain details on the status of a matter before the Court.
40043
Merck Canada Inc. v. Minister of Health
(Federal) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2022-05-13 | Close file on Leave | |
| 2022-05-12 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2022-05-12 | Judgment on leave sent to the parties | |
| 2022-05-12 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Federal Court of Appeal, Number A-143-21, 2021 FCA 224, dated November 22, 2021 is dismissed with costs. Dismissed, with costs |
|
| 2022-03-28 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2022-03-21 | Certificate (on limitations to public access), (Letter Form), 23B - Reply / Book of Authorities, (Printed version due on 2022-03-28) | Merck Canada Inc. |
| 2022-03-21 | Certificate (on limitations to public access), (Letter Form), 23A - Reply / Book of Authorities, (Printed version due on 2022-03-28) | Merck Canada Inc. |
| 2022-03-21 | Book of authorities, (Book Form), Completed on: 2022-03-21, (Printed version due on 2022-03-28) | Merck Canada Inc. |
| 2022-03-21 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2022-03-21, (Printed version due on 2022-03-28) | Merck Canada Inc. |
| 2022-03-11 | Certificate (on limitations to public access), (Letter Form), 23B, (Printed version due on 2022-03-18) | Minister of Health |
| 2022-03-11 | Certificate (on limitations to public access), (Letter Form), 23A, (Printed version due on 2022-03-18) | Minister of Health |
| 2022-03-11 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2022-03-18, (Printed version due on 2022-03-18) | Minister of Health |
| 2022-02-14 | Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2022-02-14 | |
| 2022-01-21 | Book of authorities, (Book Form), Completed on: 2022-02-14, (Printed version due on 2022-01-28) | Merck Canada Inc. |
| 2022-01-21 |
Certificate (on limitations to public access), 23A-B Amended rec'd 2022-01-24 |
Merck Canada Inc. |
| 2022-01-21 | Notice of name, (Letter Form), (Printed version due on 2022-01-28) | Merck Canada Inc. |
| 2022-01-21 | Application for leave to appeal, (Book Form), Completed on: 2022-01-21, (Printed version due on 2022-01-28) | Merck Canada Inc. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Merck Canada Inc. | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Minister of Health | Respondent | Active |
Counsel
Party: Merck Canada Inc.
Counsel
Julie Desrosiers
Caroline Youdan
333 Bay Street, Suite 2400
Bay Adelaide Centre, Box 20
Toronto, Ontario
M5H 2T6
Telephone: (416) 865-5416
FAX: (416) 364-7813
Email: jmarkwell@fasken.com
Agent
55 rue Metcalfe
Bureau 1300
Ottawa, Ontario
K1P 6L5
Telephone: (613) 696-6904
FAX: (613) 230-6423
Email: sarseneault@fasken.com
Party: Minister of Health
Counsel
Charles Maher
50 O'Connor Street
Suite 500
Ottawa, Ontario
K1A 0H8
Telephone: (613) 670-6345
FAX: (613) 954-1920
Email: kirk.shannon@justice.gc.ca
Agent
Department of Justice Canada, Civil Litigation Section
50 O'Connor Street, 5th Floor
Ottawa, Ontario
K1A 0H8
Telephone: (613) 941-2351
FAX: (613) 954-1920
Email: christopher.rupar@justice.gc.ca
Summary
Keywords
Intellectual property — Patents – Medicines — Legislation — Interpretation — Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 — Applicant failing to file patent lists for 806 Patent within 30 day time limit specified in Regulations — How should decision-makers determine the consequences of non compliance with statutory requirements where those consequences are not spelled out in the legislation? — Does the Minister of Health have discretion to waive non compliance with the 30 day time requirement in s. 4(6) of the Regulations in exceptional circumstances?
Summary
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.
The applicant, Merck Canada Inc. (“Merck”), markets Keytruda, an innovative biologic drug that was approved for use in Canada for the treatment of certain advanced stage cancers. The 806 Patent for Keytruda was issued on May 12, 2020. In order to obtain certain advantages in the Regulations, Merck was required to submit its patent lists for inclusion on the patent register within 30 days of patent issuance. The Minister refused to accept the Merck’s patent lists for filing because they were submitted after the expiry of the 30 day deadline set out in s. 4(6) of the Patented Medicines (Notice of Compliance) Regulations. Merck applied for judicial review of that decision.
Lower court rulings
Federal Court
2021 FC 345, T-1476-20
Applicant’s application for judicial review of Minister’s decision not to waive non compliance with statutory time limit dismissed
Federal Court of Appeal
2021 FCA 224, A-143-21
Applicant’s appeal dismissed.
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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