Motion to Strike; 55.2 Proceeding; January 31, 2008; ramipril

The Court overturned a decision of a Prothonotary to strike an application.

Riva had cross-referenced the submission of Pharmascience in respect of the ramipril products. Pharmascience had been prohibited by the Courts from coming to market until after patent expiry. Riva was successful in its 55.2 proceeding. The Minister made a decision not to grant an NOC due to the prohibition order against Pharmascience. Riva started a judicial review proceeding against the Minister. However, discussions continued between the parties and the Minister reversed his earlier decision and issued an NOC to Riva.

Sanofi-Aventis commended an application seeking to challenge the position taken by the Minister by reversing its earlier position that Riva should be prevented from obtaining an NOC until Pharmascience had obtained its own NOC. Riva successfully brought a motion to strike the application.

On appeal, the Court found that it was not clear and beyond doubt that Sanofi had no standing to bring the application. Furthermore, a motion to strike the application is not the stage at which it should be decided whether a "decision" so as to come under the scope of s. 18.1 of the Federal Courts Act exists. These are matters which should be left to the applications judge.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2008/2008fc129/2008fc129.html