Appeal of a motion to dismiss pursuant to s.6(5)(a) of the NOC Regulations ; 2009 FCA 138; olanzapine; May 4, 2009

The Court of Appeal dismissed the appeal of the generic company from a decision of the motions judge refusing to dismiss the proceeding as a whole.

Lilly had brought a proceeding pursuant to the NOC Regulations on the basis of a patent listed on the Patent Register. Novopharm had challenged the listing of that patent and the 2008 amendments to the NOC Regulations on the basis that the amending regulations were ultra vires the powers of the Governor in Council.

In the underlying decision, the motions judge found he did not have the jurisdiction to grant the declaratory relief sought by Novopharm and alternatively, would not have exercised his jurisdiction not to grant it if he did have jurisdiction. We summarize that decision here.

The Court of Appeal upheld the decision of the motions judge, citing a Supreme Court decision, which held that interlocutory declaratory relief is not available in a NOC proceeding as NOC proceedings are summary in nature and generally intended to produce rulings binding only on the parties to the litigation. Furthermore, declarations generally cannot be sought by way of motion. An application for judicial review is the proper procedure to challenge the validity of a regulation made by the Governor in Council.

The full text of the decision can be found at:

The full text of the decision below can be found at: