Thibault, Dufresne, Schrager
Appeal from a judgment of the Superior Court dismissing an application for judicial review. Allowed.
The appellant pharmaceutical company developed and marketed Remicade, an innovative biologic drug. In February 2017, the Minister of Health and Social Services ended insurance coverage for this medication pursuant to section 60.0.4 of the Act respecting prescription drug insurance (CQLR, c. A-29.01) on the ground that Inflectra, a competing medication of Remicade, was the subject of a listing agreement in accordance with section 60.0.4(3). The trial judge found that the decision to withdraw a medication from the list of medications was regulatory, not administrative, that the Minister had complied with the requirements of procedural fairness, and that there was nothing unreasonable about his decision.
The Minister’s power to withdraw the insurance coverage of a medication is exercised through the publication of a regulation. The very nature of every decision concerning listing is administrative. It is thus necessary to distinguish the periodic updating of the list of medications by regulation from the Minister’s individual decisions concerning the medications on the list or those that have been eliminated from the list.
The appellant is wrong to claim that the Minister tied his decision to the position of the pan-Canadian Pharmaceutical Alliance (pCPA) and thus did not exercise his discretion. The Minister may negotiate a listing agreement with a drug manufacturer. The Minister may also withdraw a medication from the list. Nothing in the Act imposes or prescribes a particular manner of proceeding on the Minister, however. In this case, to obtain a better price for the Quebec community — the ultimate purpose of the Act — the Minister decided to combine his negotiation power with that of an alliance that has the buying power of all the Canadian provinces together. This was a sound manner of exercising his decision-making power, not the abandonment of such power. His ultimate decision to end insurance coverage for Remicade, after negotiations through the pCPA, involves similar considerations. Moreover, the Minister had all the information necessary when the decision was made.
That being said, the decision to withdraw Remicade did not comply with the requirements of procedural fairness. Taking into account the last communication from the pCPA, the months-long negotiations, and the policy of reimbursing the lowest price, it would have been appropriate to provide prior notice and the possibility of being heard to comply with the principle of procedural fairness. This deficiency justifies quashing the Minister’s decision in this case.
*Résumé réalisé par SOQUIJ
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