Court of Appeal Finds That NOC Proceedings Cannot Grant Declarations of Vires
Novopharm Limited v. Eli Lilly Canada Inc. 2009 FCA 138 (Décary, J.A., Linden, J.A. and Sexton, J.A.)

May 4, 2009

Jonathan Stainsby and Andrew Skodyn for the Appellant, Novophram Limited (“Novopharm”)
Anthony Creber and Scott Robertson for the Respondent, Eli Lilly Canada Inc. (“Eli Lilly”)

This was an appeal of Marineau J.’s dismissal of a motion for a declaration that several sections of the 2008 Amending Regulations were ultra vires. Eli Lilly had sought an order prohibiting the Minister of Health from issuing and NOC to Novophram, and Novopharm claimed in response that the patent is not registered for inclusion on the register because it is not relevant to Lilly’s supplemental new drug submissions and the NOCs against which it is listed.

As the patent in question was a “grandfathered patent”, Section 2 of the Amending Regulations prohibited the argument that Novophram attempted to make above, and other sections of the Regulations precluded any exceptions. Novopharm therefore requested a declaration that the regulations in question were ultra vires the Patent Act. Marineau J., however, held that such a declaration is far beyond the scope of the summary NOC proceedings. The Court of Appeal agreed, stating firstly that NOC proceedings are indeed summary in nature, intended only to bind the parties to the litigation, and secondly that declarations cannot be sought by way of motion. The appeal was dismissed.

By: James G. Kosa, Deeth Williams Wall LLP