Health Committee on May 2nd, 2023

[The Chair, Liberal, Sean Casey]

Thank you very much, Dr. Kitchen.

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

[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?

[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.

[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?

[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.

[Adam van Koeverden, Liberal, Milton, ON]

Thank you, Professor Herder.

I would also like to point out to Mr. Clark, as an official who reported to Mélanie Bourassa Forcier, that she said there was no invitation to meet the minister. She said there was little or any attempt to comment.

These accounts of the situation and how diligent people were in trying to contact the minister seem to be very different. At the same time, last week Mélanie Bourassa Forcier, who again was the acting chair of the PMPRB, told the committee she did not feel there was any interference from the minister stemming from a letter, although you have shared very different views today.

How do we rationalize this very diametric difference in opinion?

[Douglas Clark]

To your first point, I'm very surprised to hear her say that no efforts were made to contact the minister, because I made multiple efforts and I kept her apprised of those efforts. I have a documentary record that corroborates the fact that I did make those efforts.

I think intelligent people can disagree on substantive matters of law and policy. That's just the way things are. I was not in agreement with Madame Bourassa Forcier at the time, and obviously Professor Herder wasn't either. I think it was that lack of agreement that ultimately led the acting chairperson to step down, which is her right under the circumstances.

[Adam van Koeverden, Liberal, Milton, ON]

Thank you, Mr. Clark.

Moving on, do I have time, Mr. Chair?

[The Chair, Liberal, Sean Casey]

You have about 10 seconds. You have time to offer a closing comment, I think.

[Adam van Koeverden, Liberal, Milton, ON]

Thank you. I will leave it there.

[The Chair, Liberal, Sean Casey]

Thank you, Mr. van Koeverden.

Mr. Thériault, you have six minutes.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Mr. Chair.

Mr. Clark, did you keep any information from the chair, yes or no?

I'm speaking in French, so you'll have to put in your earpiece to hear the interpretation.

[Douglas Clark]

What does that mean? I'm sorry, but I don't understand.

[Luc Thériault, Bloc, Montcalm, QC]

Put in your earpiece, Mr. Clark.

Did you stop the clock, Mr. Chair?

[The Chair, Liberal, Sean Casey]

Yes.

[Luc Thériault, Bloc, Montcalm, QC]

Did you keep any information from the chair, Mr. Clark?

[Douglas Clark]

No.

[Luc Thériault, Bloc, Montcalm, QC]

The chair, under the existing rules, is the chief executive officer and is responsible for the conduct of the work of the PMPRB as a whole and for the management of its internal affairs. You mentioned it, but you dismissed it out of hand at the outset.

Why did she inform us that there was resistance—you have the same administrative secretary—to her requesting a meeting with the minister?

[Douglas Clark]

Do you mean from the minister's office?

[Luc Thériault, Bloc, Montcalm, QC]

No, from your office, from the secretary whose services you share.

Why was there resistance?

[Douglas Clark]

There wasn't any resistance. I've mentioned several times that I tried many times to—

[Luc Thériault, Bloc, Montcalm, QC]

In this case, why did she resign?

[Douglas Clark]

You'd have to ask her.

[Luc Thériault, Bloc, Montcalm, QC]

I'm asking you, Mr. Clark. If everything was going well, why did the chair resign?

[Douglas Clark]

Actually, Mr. Thériault, everything wasn't going well.

I think Ms. Bourassa Forcier resigned because the other members of the board didn't agree with her willingness to give in to the minister's request. I think it's more—