Digests

Practice

Dismissal of Proceedings

Appeal, cross-appeal from Federal Court order (2010 FC 711) terminating respondents’ (Janssen-Ortho Inc. and Daiichi Sankyo Company, Limited) application to prohibit Minister of Health from issuing notice of compliance to appellant for patent No. 1304080 ('080 patent)—Federal Court initially granting prohibition order—Order reversed on appeal (2009 FCA 212), prohibition application remitted to Federal Court for redetermination—First Judge recusing himself from redetermination—'080 patent expiring before matter to be redetermined heard—Minister granting appellant notice of compliance—As a result, appellant bringing motion for dismissal of application for prohibition on account of mootness—However, Federal Court terminating, rather than dismissing, application—By terminating application, Federal Court intending to prevent appellant from bringing Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, s. 8 action—S. 8 action speculative at time of motion for mootness—Investigation by Federal Court of possible s. 8 action beyond limited scope of motion—Such investigation unfair to appellant—Availability of s. 8 action in these circumstances should only be considered if s. 8 action brought—Order disposing of motion should have dismissed, not terminated action—Since matter moot, Federal Court correct in not engaging in redetermination—Respondents cross-appealing regarding whether Federal Court should have refrained from acting until appeal from first Judge’s decision to recuse himself heard—As that appeal dismissed, no reason for Federal Court to refrain from acting—Appeal allowed, cross-appeal dismissed.

Janssen-Ortho Inc. v. Apotex Inc. (A-258-10, 2011 FCA 57, Stratas J.A., judgment dated February 14, 2011, 6 pp.)