Leave to intervene in an appeal; 2009 FCA 24; olanzapine; January 29, 2009

The Court dismissed a motion by the Canadian Generic Pharmaceutical Association (CGPA) requesting leave to intervene in Novopharm's appeal of a decision of the Federal Court.

In the underlying motion, Novopharm sought a declaration that sections 2, 3 and 4 of the 2008 amendments to the NOC Regulations are ultra vires and an order dismissing Eli Lilly's prohibition application pursuant to section 6(5)(a) of the NOC Regulations. The motion had been dismissed by the motions judge.

The Court of Appeal held that even if it finds at the appeal that the Court below should have exercised its jurisdiction to declare the impugned section of the 2008 amendments to be invalid, it is unlikely that the Court of Appeal will then proceed to determine the validity of those amendments. The Court is reluctant, in the context of an appeal to decide controversial, difficult and important questions of law at first instance without the benefit of a reasoned decision by a judge. Thus, the only question likely to be at issue on the appeal is whether a decision that the Regulations are invalid is properly made in an interlocutory motion.

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