PRACTICE |
Pleadings |
Motion to Strike |
Patented Medicine (Notice of Compliance) Regulations (Re)
T-139-02
2002 FCT 1000, Gibson J.
25/9/02
29 pp.
Motion pursuant to rule 51 Federal Court Rules, 1998 seeking to set aside part of Prothonotary's order striking notice of application for reference with leave to amend --Cross-appeal by drug company Lilly requesting that if Minister successful on appeal, it be allowed to file evidence--Appeal and cross-appeal dismissed without leave to amend--In all aspects of appeal, Court to exercise own discretion de novo--Court has authority to strike reference, substance of which established on ex parte motion--Lilly disclosed prima facie case why ex parte order of directions should not have been made--Pursuant to Federal Court Rules, 1998, r. 322 tribunal having authority to bring ex parte motion --Minister qualifying as tribunal--Where tribunal brings motion without consultation of party directly affected, tribunal running risk of having reference struck if affected party successfully attacks factual basis of reference--Open to Prothonotary to conclude there existed exceptional case in which plain and obvious impugned reference without merit-- Court reaching same conclusion de novo--Plain and obvious would be abuse of process to allow Minister's reference to proceed on basis of disputed factual underpinning, that could not be rationalized without full presentation of evidence and opportunity for cross-examination, thus essentially incapable of eliciting informed response from Court--Reference struck without leave to amend--Federal Court Rules, 1998, SOR/98-106, rr. 51, 322.