[2012] 1 F.C.R. D-11
Patents
Practice
Judicial review of Minister of Health decisions rejecting applicant’s submission for notice of compliance (NOC) for omeprazole magnesium tablets—Applicant filing present application 12 months after Minister’s last refusal—Minister taking position that application out of time, failing to meet 30-day filing requirement of Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1(2)—Applicant arguing that application not filed out of time, ongoing unfair conduct by Minister open to review at any time, history of litigation, acrimony allowing applicant to avoid 30-day filing requirement, application of Federal Courts Rules, SOR/98-106, r. 302—Whether application out of time; motion to extend time meritorious—Allowing applicant to avoid 30-day filing requirement opening door to similar belated applications, effectively extinguishing requirement, sidestepping need for finality for discrete administrative decisions attacked as unlawful—Applicant’s position colourable device intended to permit applicant to avoid violating letter, spirit of s. 18.1(2), r. 302—Evidence failing to provide justification for delay in filing, not meeting test to establish continuing intention to proceed or explain failure to do so—Not open to well-informed, well-represented litigant to claim luxury of at least one year, bring application for review—Application dismissed.
Apotex Inc. v. Canada (Health) (T-1372-10, 2011 FC 1308, Barnes J., judgment dated November 14, 2011, 17 pp.)