Janssen-Ortho Inc. v. Novopharm Ltd.

LeBel J. — The applicants, Janssen-Ortho Inc. and Daiichi Pharmaceutical Co. Ltd., applied on April 22, 2005 for an order extending the time to serve and file an application for leave to appeal from a judgment rendered by Richard C.J. of the Federal Court of Appeal on January 4, 2005 (2005 FCA 2), dismissing an application for a stay of a judgment of Mosley J. of the Federal Court rendered on November 19, 2004 ((2004), 35 C.P.R. (4th) 353, 2004 FC 1631); and from a judgment of the Federal Court of Appeal rendered on January 6, 2005 (2005 FCA 6), dismissing the appeal from the judgment of Mosley J. as moot. The judgment of Mosley J. had dismissed an application to prohibit the Minister of Health from issuing a notice of compliance to the respondent Novopharm Ltd. under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133. After the judgment of Mosley J., the Minister issued a notice of compliance. The applicants filed a notice of appeal from the judgment of Mosley J., and attempted to stay that judgment and quash the notice of compliance in the Federal Court of Appeal.

The deadline for filing an application for leave to appeal was March 7, 2005. From the record of the application, it appears that the applicants gave no indication until March 7, 2005, of their intention to seek leave to appeal. Then, on the last day of the 60-day period, they sent a letter to each of the respondents, Novopharm Ltd. and the Minister of Health, seeking their consent. Consent was refused by the respondent Novopharm, while the Minister took no position. Nevertheless, the applicants did not file their application for leave to appeal and for an extension of time until April 22, 2005, 106 days after the judgment of the Federal Court of Appeal.

The grounds for an extension of time are that our Court rendered two decisions dismissing applications for leave to appeal on January 20 and 27, 2005, in cases raising similar issues and that the applicants needed more time to consider the implications of these decisions, as well as relevant case law. No other explanation is offered for this apparent lack of diligence.

Absent other and better grounds for the delay, our Court should not entertain such an application in a matter that was mainly procedural and in which one would expect that the relevant issues and case law should have been considered and scrutinized in the courts below. Time limits should mean something. Valid reasons should be given to explain the delay. Our Court must be flexible and fair. Fairness is owed not only to applicants but also to respondents who may very well be significantly inconvenienced by undue or unexplained delays.

For these reasons, the application for an extension of time is dismissed with costs.