Shoppers Ruling Granted Leave to Appeal

The Ontario Court of Appeal granted leave recently to hear an appeal of Shoppers Drug Mart Inc. v. Ontario, a judicial review by the Ontario Superior Court holding that private product label regulations in s. 12.02 of Ontario Regulation 201/96 to the Ontario Drug Benefit Act (“ODBA”) and s. 9 of Ontario Regulation 935 of the Drug Interchangeability and Dispensing Fee Act (“DIDFA”) were ultra vires and of no force and effect.

Ontario has enacted sweeping reforms of the drug system in the province in the past year. The regulations discussed here prevented “private label” products from being sold on the same basis as generic pharmaceuticals, usually produced and manufactured by the pharmacies that are selling them.

Molloy J. stated that the regulations,

(1) fall outside the regulation-making authority delegated by the parent statute, in particular because they purport to prohibit rather than regulate;

(2) do not fall within the purpose of the parent statute; and

(3) constitute an interference with property and commercial rights that is not expressly authorized by the parent statute.

A summary of the case can be found on Ogilvy Renault.

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