Date: 20030326 Docket: A-636-02 Neutral citation: 2003 FCA 166 CORAM: ROTHSTEIN J.A. NADON J.A. MALONE J.A. BETWEEN: ASTRAZENECA AB and ASTRAZENECA CANADA INC. Appellants (Respondents) and APOTEX INC. Respondent (Appellant) and THE MINISTER OF HEALTH Respondent (Respondent) Heard at Ottawa, Ontario, on March 26, 2003. Judgment delivered from the Bench at Ottawa, Ontario, on March 26, 2003. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Date: 20030326 Docket: A-636-02 Neutral citation: 2003 FCA 166 CORAM: ROTHSTEIN J.A. NADON J.A. MALONE J.A. BETWEEN: ASTRAZENECA AB and ASTRAZENECA CANADA INC. Appellants (Respondents) and APOTEX INC. Respondent (Appellant)

and THE MINISTER OF HEALTH Respondent (Respondent) REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on March 26, 2003. NADON J.A. [ 1 ] We have not been persuaded that the motion judge made any error when he concluded that the identity of the drug, to which the respondent Apotex Inc. compared its drug, pursuant to section 5(1) of the Patent (Notice of Compliance) Regulations , SOR/93-133 (the " Regulations "), does not give rise to any factual issue. [ 2 ] We are satisfied that the motion judge, notwithstanding the concerns raised by Ms.

Kang, counsel for the appellants, did not determine any of the issues that arise under section 5(1) of the Regulations and which are to be determined at the hearing of the respondent's judicial review application. [ 3 ] As the motion judge's determination is the only one which the appellants are challenging before us, we are all agreed that this appeal must be dismissed with costs, which we fix, by consent of the parties, at $2000. "M. Nadon" J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-636-02 APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED NOVEMBER 6, 2002, TRIAL DIVISION FILE NO. T-812-02 STYLE OF CAUSE: ASTRAZENECA AB ET AL. v. APOTEX INC. ET AL. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: March 26, 2003 REASONS FOR JUDGMENT OF THE COURT (Rothstein, Nadon, Malone JJ.A.) RENDERED FROM THE BENCH BY: Nadon, J.A. APPEARANCES : Ms. Yoon Kang for the Appellants Ms. Julie Perrin for the Respondent, Apotex Inc.

SOLICITORS OF RECORD : Smart & Biggar for the Appellants Toronto, Ontario Goodmans LLP for the Respondent, Apotex Inc. Toronto, Ontario