LNR v. Mountainview Pharma Corp, 2017 ABQB 137

Court of Queen’s Bench of Alberta Citation: LNR v. Mountainview Pharma Corp, 2017 ABQB 137 Date: 20170228 Docket: 1510 00925 Registry: Red Deer Between: L.N.R. and C.S. Inc. Plaintiffs - and - Mountainview Pharma Corp. operating as Sproule's Mountainview IDA Drug Store, Ian Hollingshead, Bryon Wright and John Doe Defendants Notice Regarding Publication The Court has used initials regarding certain parties as a result of this judgment making reference to medical information of such parties or their principals.

Corrected judgment: A corrigendum was issued on March 27, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of

J. Farrington, Master in Chambers _______________________________________________________ Background [1] This is an action that is largely about the interchangeability of prescription drugs and their brand name and generic forms,and the things that flow from those changes. The applications before me are about statutory

interpretation. [2] The individual plaintiff, and a closely held corporation through which she operates a business, bring an action against twopharmacists, and the pharmacy business that they worked for, arising from an allegedly bad reaction to a change from one generic formof a drug to another generic form of the drug. [3] All of the defendants apply for

summary dismissal. [4] The individual plaintiff had been taking Apo-Azathioprine (“Apo”) to deal with a hair loss issue. The medication proved tobe generally effective, and the plaintiff was happy with the medication and her treatment. Her regular pharmacy was the corporatedefendant. On the occasion of one of her refills, the “Apo” version of the drug was unavailable, and the prescription was instead filledwith Novo-Azathioprine (“Novo”). Novo and Apo are different versions of the generic drug Azathioprine made by differentmanufacturers.

The original brand name version and formulation of the drug is Imuran. [5] The change was brought to the attention of the individual plaintiff by the pharmacist on duty when she picked up herprescription. She did not immediately need to commence taking the medication, but a short time later, when her previous supply wasexhausted and she was preparing to take the medication, she immediately noticed that it looked entirely different in appearance from herprevious medication.

She discussed the matter with the individual pharmacist defendant Ian Hollingshead by telephone, and she wasreassured that the products were interchangeable. She took the medication for a brief period of time, and she alleges that there wassignificant hair loss and other adverse effects. [6] At this stage, there is no expert medical evidence, nor is there any independent expert pharmaceutical evidence, about theinterchangeability of the various drugs. There are some documents in evidence suggesting equivalence and interchangeability. Relevant Law [7] The defendants apply for

summary dismissal of the action against them on a very narrow ground. They say that

section 6 ofSchedule 19 to the Health Professions Act, RSA 2000, c H-7 is an entire defence to the action for all of them, and that the action oughtto be dismissed on that basis. [8]

Section 6 of

Schedule 19 provides in its entirety: 6(1) If a prescription refers to a drug or drug combination by a brand name or a name other than its generic name, the regulated memberwho dispenses the prescription may dispense a drug or drug combination that is the generic or brand name equivalent of that namedin the prescription unless the prescriber indicates otherwise (

a) by designating the name of the manufacturer on the prescription, or (

b) by specifying in the prescriber’s original handwriting that no generic or brand name equivalent may be dispensed.

(2) No action may be commenced against a regulated member for dispensing a drug that is the generic or brand name equivalent ofthe drug named in the prescription unless the prescriber has indicated in accordance with subsection (1) that no drug other than the drugspecified in the prescription may be dispensed. (Emphasis added) [9] I have emphasized certain words in both of subsection (1) and subsection (2). Counsel for the individual pharmacists saysthat section 6(2) stands on its own and is in in itself a complete defence. Counsel for the pharmacy submits that the two subsections arerelated, and must be read together. Counsel for the plaintiffs says that the

section is ambiguous. All counsel agree that there do notappear to be any reported cases dealing with

section 6 or similar sections in Canada. [10] Given that it is argued that

section 6 operates as an entire defence to the claim of the plaintiffs, I must find that the facts of thiscase fall within

section 6 if the claim is to be dismissed. Of course, the facts must fit the statute, as opposed to searching for aninterpretation of the statute to fit the facts. [11] I note the wording that I have emphasized in

section 6. The highlighted wording in subsection 6(2) very much tracks thehighlighted wording in subsection 6(1). Subsection 6(2) also makes reference to subsection 6(1). [12] In Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27, Iacobucci, J. held at paragraph 21: Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulatesthe approach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R.213; Royal Bank of Canada v. Sparrow Electric Corp., (SCC), [1997] 1 S.C.R. 411; Verdun v. Toronto-DominionBank, (SCC), [1996] 3 S.C.R. 550; Friesen v. Canada, (SCC), [1995] 3 S.C.R. 103. [13] Another important principle of statutory

interpretation is that each word must be presumed to have been intended to have aneffect, and meaning must be given to each word in the enactment. See for example cases such as Vavilov v. Canada (Citizenship andImmigration), 2015 FC 960 , Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2011 ABQB 226 and R.v. Crowchild, 1987 ABCA 41 and others. [14] In my view, the plain meaning of the entirety of

section 6 is that section 6(1) authorizes a pharmacist to make drug changes inthe circumstances described in that subsection. Subsection 6(2) then provides protection for the pharmacist for making a substitution orchange in accordance with subsection 6(1). That is the plain and ordinary meaning of the entirety of

section 6. There is no ambiguity,and the two subsections can be read together harmoniously. [15] The issues in this case are whether the facts are sufficiently undisputed to consider the case for

summary judgment, andwhether the facts fall clearly within

section 6. Analysis [16] The original prescription was handwritten and was for “Azathioprine”. The electronic version of the prescription on thepharmacy’s system for the specific filling of the prescription in this case refers to “Novo-Azathioprine” being filled as a replacement for“Apo-Azathioprine” (as opposed to a general reference to Azathioprine). There appears to be some factual room for debate as to whetherthis was a filling of a prescription for the generic name “Azathioprine”, or as to whether the prescription had evolved to being treated asone for Apo-Azathioprine in the system of the pharmacy. [17] Those facts must be measured against

section 6 of

Schedule 19 to the Health Professions Act. [18] Recall that s. 6(1) says: 6(1) If a prescription refers to a drug or drug combination by a brand name or a name other than its generic name, the regulatedmember who dispenses the prescription may dispense a drug or drug combination that is the generic or brand name equivalent of thatnamed in the prescription unless the prescriber indicates otherwise (

a) by designating the name of the manufacturer on the prescription, or (

b) by specifying in the prescriber’s original handwriting that no generic or brand name equivalent may be dispensed. [19] I have emphasized a different part of the wording this time. The highlighted words are the words that define the category ofevents that fit within the subsection. [20] The first possibility for inclusion in the category is if the prescription refers to a drug by its brand name. The brand-name inthis case is Imuran. The prescription does not refer to Imuran. That is the end of that possibility for inclusion.

The second possibility is ifthe prescription refers to a name other than the drug’s generic name which in this case is Azathioprine. The physician’s prescription inthis case refers to Azathioprine. That is not a name “other than its generic name”. Accordingly, that category for inclusion in

section 6 isnot met either. [21] Subsection 6(1) then goes on to describe switches that the pharmacist can make. The difficulty, however, is that theprescription does not seem to fit within the two categories in section 6(1) for which change is expressly authorized and protection for thepharmacist is provided. Bear in mind, as well, that there is a factual argument that the prescription had evolved to being treated as one forApo. [22] An extensive review of Hansard extracts was provided during argument. The main point of those extracts was to show that theintention of provisions such as

section 6 was to provide protection for pharmacists in legislated efforts to lower drug costs byencouraging changes from brand names to generic substitutes. The facts of this case have nothing to do with that legislative purpose.This is not a case about changing from Imuran to a generic form of Azathioprine. This case is about a change from one generic form ofthe drug, to another generic form of the drug. The evidence before the Court is that Imuran costs about four times as much as the genericforms of the drug. The Apo and Novo products are both generic manufactured forms of the drug Azathioprine. [23]

Section 6 is consistent with the argued Hansard purpose, namely to encourage the substitution of generic drugs for namebrand drugs, and to protect pharmacists who make such changes. [24] The issues in this case are about equivalence of drugs, advice and expertise. While the pharmacists may well prevail (or not)in due course, and successfully argue equivalence, that is not the application before me. The

summary dismissal application is not basedupon anything other than

section 6. [25] While there is some material before the Court suggesting equivalency between the “Apo” and “Novo” versions of the drug, atleast as deemed by Alberta Health, it is important to remember that “equivalency” (as in “close enough”) does not necessarily meanequality (as in “exactly the same”). Indeed, the evidence is that the non-drug filler and binding ingredients are different between theversions, and that absorption rates are clearly different between the versions. Both Apo and Novo have apparently been demonstrated tobe “close enough” to Imuran.

[ 26 ] There is no direct comparison study in evidence, however, between Apo and Novo, and in fact on some measures the figures for Apo and Novo fall on opposite sides of the figures for Imuran making a larger direct difference between Apo and Novo, than the differences between either of them and Imuran alone. That may or may not be significant. There is no expert evidence on those issues before the Court, and those discussions fall outside of the parameters of

section 6 and the matters before the Court on this application. [ 27 ] Finally, I note that the plaintiffs urge the Court to draw a distinction between the prescription filling function and the subsequent telephone advice function regarding the

interpretation of

section 6. Given the conclusions that I have reached on

section 6, it is not necessary for me to decide that issue and I would suggest that the issue is better addressed in the context of a more fulsome factual matrix. Conclusions [ 28 ] In the result, the

summary dismissal applications are dismissed. [ 29 ] As a final observation, I note that while the individual pharmacists have pleaded

section 6 of

Schedule 19 as a defence to the action, the corporate defendant did not. Rule 13.6(3)(

r) requires the pleading of the operation of an enactment. Having said that, however, nothing would appear to turn on the issue, because I have found that

section 6 does not operate as a defence on these facts in any event. [ 30 ] Thank you to counsel for their excellent written arguments and their helpful submissions. If the parties cannot agree on costs they can make an application to resolve them within three months of the filing of this decision. Heard on the 14 th day of February, 2017. Dated at the City of Red Deer, Alberta this 27 th day of February, 2017. J. Farrington M.C.Q.B.A. Appearances: Warren Sinclair LLP Donna C.

Purcell, QC for the Plaintiffs Gowling WLG (Canada) LLP Jessie Larter for the Defendants Ian Hollingshead and Bryon Wright Chomicki Baril Mah LLP Faye Garries for the Defendant Mountview Pharma Corp. _______________________________________________________

Corrigendum of the Memorandum of Decision of J. Farrington, Master in Chambers _______________________________________________________ Decision states the application was heard on February 8, 2017. It was originally scheduled to be heard that day but it was actually heard on February 14, 2017 .