This proceeding has a complex history, summarized in our July 19, 2010 Bulletin. Apotex appealed the decision of the Trial Division, which terminated its proceeding against Janssen. The Court of Appeal allowed the appeal.
The Court of Appeal considered the language of the Order “terminating” instead of “dismissing” the proceeding, holding that the Trial Judge seems to have intended to prevent Apotex from bringing an action under s. 8 of the NOC Regulations. The Court of Appeal held that it was an error for the Judge to investigate whether Apotex could bring an action under s. 8, as it was beyond the scope of the motion before the Court. Furthermore it was unfair. The Court of Appeal held that Apotex could not have reasonably expected that its motion for dismissal of the prohibition application for mootness would extend to the issue of whether a subsequent s. 8 proceeding was available. Thus, the Court of Appeal set aside the Federal Court’s order and dismissed the application.