JANSSEN-ORTHO INC. v. DAIICHI SANKYO COMPANY, LIMITED, 2011 FCA 58
Opinion
Federal Court of Appeal Cour d'appel fédérale Date: 20110214 Docket: A-240-10 Citation: 2011 FCA 58 CORAM: SEXTON J.A. LAYDEN-STEVENSON J.A. STRATAS J.A. BETWEEN: JANSSEN-ORTHO INC. and DAIICHI SANKYO COMPANY, LIMITED Appellants and APOTEX INC. and THE MINISTER OF HEALTH Respondents Heard at Toronto , Ontario on February 14, 2011 Judgment delivered from the Bench at Toronto, Ontario on February 14, 2011 REASONS FOR JUDGMENT OF THE COURT BY: LAYDEN-STEVENSON J.A. Federal Court of Appeal Cour d'appel fédérale Date: 20110214 Docket: A-240-10 Citation: 2011 FCA 58 CORAM: SEXTON J.A.
LAYDEN-STEVENSON J.A. STRATAS J.A.
BETWEEN: JANSSEN-ORTHO INC. and DAIICHI SANKYO COMPANY, LIMITED Appellants and APOTEX INC. and THE MINISTER OF HEALTH Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on February 14, 2011) LAYDEN-STEVENSON J.A. [1] The appellants, Janssen-Ortho Inc. and Daiichi Sankyo Company, Limited (collectively Janssen), appeal the order of Shore J.of the Federal Court (the judge) dated June 14, 2010, wherein the judge recused himself from sitting on this matter and remitted thematter to the Chief Justice of the Federal Court. [2] The contextual background giving rise to the order can be summarily stated.
Upon application by Janssen pursuant tosubsection 6(1) of the Patented Medicines (Notice of Compliance) Regulations, S.O.R./93-133 (the Regulations) the judge granted anorder for prohibition in relation to levofloxacin, the subject of Canadian patent no. 1,305,080 (the '080 Patent). This Court allowed anappeal of that order.
In its judgment, this Court set aside the judges order and remitted the matter to him for redetermination on the basisthat there was no abuse of process on the part of the respondent Apotex Inc. in making the allegations found in its notice of allegation andin contesting the application for a prohibition order. The Court also instructed the judge to assess the evidence independently of anyfindings in Janssen-Ortho v. Novopharm Limited, 2006 FC 1234, 300 F.T.R. 166.
After this Court released its judgment and reasons forjudgment, the '080 Patent expired. [3] Janssen sought to have the matter reconsidered while the respondent sought to have the matter dismissed for mootness. Afterreceiving written submissions, the judge recused himself. [4] Janssen argues that the judge erred by recusing himself because, in so doing, he contravened this Courts judgment. Further,he had insufficient grounds for the recusal. Despite the capable and articulate submissions of Janssens counsel, we are of the view thatthe appeal should be dismissed. [5] In Wewaykum Indian Band v.
Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259 at paragraphs 57-59 (Wewaykum), theSupreme Court noted that public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law mustalways do so without bias or prejudice and must be perceived to do so. The essence of impartiality lies in the requirement that the judgeapproach the case to be adjudicated with an open mind. [6] We agree with the respondents written submission that this Court remitted the matter to the judge with the implicitexpectation that his judicial function would be performed impartially.
A judge cannot be faulted for recusing himself when he lacks thefundamental qualification at the heart of impartiality -- to be free of any leaning, inclination, bent or predisposition towards a particularresult.
[ 7 ] Janssen maintains that the judge erred by recusing himself on the basis that he would reach the same conclusion as in his original decision and that doing so would constitute a lack of judicial independence. Janssen notes that judges are regularly and properly required to redetermine matters they have previously decided and that the judges decision in this case was based on an erroneous understanding of his obligation to independently analyze the matter before him.
Referring to the 2004 edition of the Canadian Judicial Councils publication, Ethical Principles for Judges , Janssen submits that the factors cited in the portion (E.19) titled Former Clients, addressing conflict of interest and reasonable apprehension of bias, govern the propriety of recusals in all circumstances.
According to Janssen, it is clear that there was no actual or reasonable apprehension of bias in this case. [ 8 ] A reasonable apprehension of bias applies when a party applies for a judges recusal, not when a judge has determined, on his own, that he lacks the necessary impartiality to decide a case. As the Supreme Court noted, at paragraph 62 of Wewaykum , where it can be established here the judge has declared it bias will inevitably lead to the disqualification of the judge.
Further, at paragraph 64, the Supreme Court noted that the proof of actual bias is very difficult because the law does not countenance the questioning of a judge about extraneous influences affecting his mind. [ 9 ] Janssens arguments focus on the judge having the necessary state of mind to fairly redetermine the prohibition application, but recusing himself unnecessarily in spite of that state of mind. The only evidence of the judges state of mind is found in his reasons for the recusal order.
The judges reasons state that he did not believe that he could redetermine the matter without reaching the same conclusion through the same reasons. Although this Courts judgment did not preclude the judge from reaching the same conclusion, it did instruct him to redetermine the matter in a different manner than he had done earlier. The judges reasons, read in totality and fairly interpreted, indicate that the judge believed he could not impartially redetermine the matter before him because he was already irrevocably committed to a particular conclusion for the same reasons he had given initially.
We accept the judges determination and have no basis upon which to doubt it. [ 10 ] This particular matter presents a unique set of circumstances. We do not anticipate that judges or tribunals, when directed to reconsider or redetermine a matter, would have grounds for disqualification merely because they have considered the matter before. Something much more fundamental must be present to justify a recusal. Indeed, we find it hard to believe that judges or tribunals would declare themselves biased simply because they are being asked to reconsider or redetermine a matter.
Recusals should be exceedingly rare in such circumstances. [ 11 ] For the reasons given, the appeal will be dismissed with costs "Carolyn Layden-Stevenson" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-240-10 (APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE SHORE , DATED JUNE 14, 2010, DOCKET NO. T- 1508-05)
STYLE OF CAUSE: JANSSEN-ORTHO INC. and DAIICHI SANKYO COMPANY, LIMITED v. APOTEX INC. and THE MINISTER OF HEALTH PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: February 14, 2011 REASONS FOR JUDGMENT OF THE COURT BY: (SEXTON, LAYDEN-STEVENSON & STRATAS JJ.A.) DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON J.A. APPEARANCES : Neil Belmore Greg Beach Michael Charles FOR THE APPELLANT JANSSEN- ORTHO INC. FOR THE APPELLANT DAIICHI SANKYO COMPANY, LIMITED David E. Lederman No appearance FOR THE RESPONDENT APOTEX INC.
FOR THE RESPONDENT MINISTER OF HEALTH SOLICITORS OF RECORD : Belmore McIntosh Neidrauer LLP Bereskin & Parr LLP FOR THE APPELLANT JANSSEN- ORTHO INC. FOR THE APPELLANT DAIICHI SANKYO COMPANY, LIMITED Goodmans LLP Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT APOTEX INC. FOR THE RESPONDENT MINISTER OF HEALTH
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