Health Committee on May 2nd, 2023

Evidence of meeting #65 for Health in the 44th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board.

A recording is available from Parliament.

On the agenda

Patented Medicine Prices Review Board

MPs speaking

Sean Casey

Robert Gordon Kitchen

Also speaking

Matthew Herder Director, Health Law Institute, Dalhousie University, As an Individual

Douglas Clark Executive Director, Patented Medicine Prices Review Board

11:20 a.m.

Liberal

The Chair Liberal Sean Casey

Thank you very much, Dr. Kitchen.

Next we have Mr. van Koeverden, please, for six minutes.

11:20 a.m.

Liberal

Adam van Koeverden Liberal Milton, ON

Thank you very much, Mr. Chair.

Welcome to the witnesses, and thanks for being here.

Last week our witness, Madame Bourassa Forcier, was cut a little bit short, so I'd like to read into the record something from her letter, which I think is relevant to this meeting today regarding the new chair, Thomas Digby.

I quote the translated version: “I have not met the new chairperson, who has expertise in intellectual property and has previously worked in the pharmaceutical industry. I see this experience not as a problem but as an asset. It's important to know the industry and its strategies well to identify the elements that will motivate change in practices. I'm also confident that this new chairperson will know how to create the change required within the PMPRB so that this agency can fulfill its mandate in the best possible way for all Canadians.”

Professor Herder, before I ask a question, I'd like to take umbrage with the allegation that members of the government didn't take the opportunity to challenge, particularly in the case of Trikafta, suggestions from industry that the PMPRB was standing in the way of access to that drug.

I have a young man in my riding named Liam Wilson, who's an extraordinary young guy. I talked to him almost every week throughout that process and ensured that his family was aware of the fact that the manufacturers had not yet applied for regulatory approval, while the pharmaceutical industry was alleging that the PMPRB was the stopgap.

I'll go on to my questions.

Mr. Herder, the Court of Appeal of Quebec found that the amendment in question that would allow the PMPRB to collect price information on third party rebates and the new price regulatory factors, including their associated reporting requirements, to be outside the patent power and therefore invalid. That was the Court of Appeal of Quebec. This was corroborated by the Superior Court of Quebec, the Federal Court and the Federal Court of Appeal.

Do you think the Court of Appeal was wrong?

11:20 a.m.

Prof. Matthew Herder

I'm not sure that the summary you just provided is accurate. I don't think the Federal Court of Appeal corroborated that finding. The issues were different in the two cases; however, I think the real problem is that there was an opportunity to seek further guidance from the Supreme Court of Canada, and the decision was made not to seek leave to appeal.

11:20 a.m.

Liberal

Adam van Koeverden Liberal Milton, ON

I will clarify. They were declared out of scope or unconstitutional not only by the Superior Court of Québec but also the Court of Appeal of Quebec and the Federal Court of Appeal.

To move on, last week Mélanie Bourassa Forcier shared with us, speaking as a lawyer, that she had doubts of the constitutionality of those reforms before the court decision, so she wasn't surprised by the Court of Appeal's decision. I take it by your answer that you disagree with that view.

Did you ever speak with Madame Bourassa Forcier as acting chair of the board about her views on this matter? Do you have a legal rationale for disagreeing with her?

11:20 a.m.

Prof. Matthew Herder

I was surprised by her comment last week that she was skeptical about the constitutionality of the provisions. I was surprised because I was not clear about why you would accept the role as a member of the board if you had questions along those lines.

I think there is real debate about the constitutionality of some of those amendments and to have a better understanding of the real prices being paid in Canada for those drugs. I think the changes that were proposed to the regulations were warranted. Then the Quebec Court of Appeal decision happened, and we have to live with that, especially in the absence of an attempt to appeal to the Supreme Court.

I think there are ample grounds under the federal patent-related power to seek more information about the real prices of drugs, but obviously the Quebec Court of Appeal decision is binding upon us. Our new guidelines tried to take that into account to continue to move forward.