On January 16, 2019, the Quebec Court of Appeal declared invalid the decision of the Minister of Health and Social Services that Remicade, a Janssen product, had been removed from the Quebec ‘s List of Medications covered by the provincial drug plan.
In 2017, the Minister of Health and Social Services made the decision to remove Remicade from the list of covered drugs based on the authority conferred by section 60.0.4 of the Act respecting prescription drug insurance. This section allowed them to remove a drug from the list of those covered by the insurance plan if a competitive drug was the subject of a listing agreement. Remicade was withdrawn from the list without notice and Janssen applied for judicial review of the decision. The Court of Appeal found that the Minister's decision was invalid because he had failed to meet the minimum requirement of procedural fairness applicable to Janssen. In this regard, the Minister had a responsibility to give Janssen adequate notice, an opportunity to comment on the decision and to provide Janssen with reasons for the decision to withdraw Remicade.
This decision, therefore, sets out how and in what circumstances the authority under section 60.0.4 of the Pharmacare Act applies and the extent to which the Minister must take into account the requirement for procedural fairness.
Janssen was advised in this matter by a Fasken team composed of Julie Desrosiers, Christian Leblanc and Patricia Hénault.
