The Patented Medicine Prices Review Board (the
"PMPRB") commenced a proceeding against
Alexion Pharmaceuticals Inc. ("Alexion")
in respect of Alexion's drug, SOLIRIS (eculizumab), which is
used to treat rare and devastating blood and genetic conditions.
The PMPRB claimed and successfully argued that Alexion was selling
Soliris at an excessive price, under sections 82 and 85 of the
Alexion applied for judicial review of the PMPRB decision
claiming, inter alia, that the excessive price provisions
of the Patent Act were unconstitutional. In response, the
Attorney General successfully brought motions before Prothonotary
Aalto to dismiss the constitutional challenge on the basis that the
issue was decided in Canada (Attorney General) v. Sandoz Canada
Inc., 2015 FCA 249 ("Sandoz").
Alexion appealed the decision of the Prothonotary to the Federal
Court on the basis that Alexion had expert evidence that was not
before the court in Sandoz and, consequently, Alexion
should be entitled to a fresh opportunity to properly and fully
litigate the constitutionality of the pricing provisions.
Justice Simpson dismissed Alexion's appeal. The court
affirmed that Sandoz is binding authority, and held that
there was no basis for revisiting the constitutionality of the
provisions. In doing so, the court (a) found that the
Prothonotary's decision was correct; (b) upheld the
constitutionality of the Patent Act's pricing
provisions; and (c) endorsed the PMPRB's powers to add
additional excessive pricing allegations before a PMPRB
The PMPRB heard evidence on the matter of the price of SOLIRIS
from January 16 to January 27, 2017 and we expect an order
concerning any penalty owed by Alexion for excessive pricing to
issue in the coming months. More information can be found here, and we will update the blog as more
information becomes available.
The full text of the Court's decision can be found here.
This article was written with the helpful contribution of
Michael Garbuz (Articling Student).
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