The Crown brought a motion for summary judgment on the basis that Nu-Pharm's action was fatally flawed. The Crown argued that the action for damages was contingent on the Court finding that the Director-General's actions in determining that the marketing of Nu-Pharm's enalapril without a NOC were unlawful and that the Director-General's communications in this regard to formularies were without authority. Such findings could only be made in an application.

The Court acknowledged that this position was correct and that even Nu-Pharm had acknowledged this by virtue of previously filing such an application (it had discontinued the application after the patentee had been granted intervener status). The Court, however, in granting the summary judgment stayed the decision for 30 days to allow Nu-Pharm to seek leave for an extension to commence an application.

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