SUPREME
COURT OF CANADA
Between:
Janssen Ortho Inc. and Daiichi Pharmaceutical Co.
Applicants
v.
Novopharm
Ltd. and Minister of Health
Respondents
Coram:
LeBel J.
|
Motion to extend the time in which to serve and
file the application for leave:
(paras. 1- 5)
|
Order by LeBel J.
|
______________________________
Janssen-Ortho Inc. v. Novopharm Ltd., [2005] 1 S.C.R. 776,
2005 SCC 33
Janssen-Ortho
Inc. and Daiichi Pharmaceutical Co. Applicants
v.
Novopharm Ltd. and Minister of Health Respondents
Indexed
as: Janssen-Ortho Inc. v. Novopharm Ltd.
Neutral
citation: 2005 SCC 33.
File
No.: 30900.
2005: May
25.
Present: LeBel J.
motion to
extend the time in which to serve and file the application for leave
Practice — Supreme Court of Canada — Motion to extend
time to file application for leave to appeal — Lack of diligence to file
application — Motion dismissed.
MOTION to extend the time in which to serve and file the application
for leave to appeal. Motion dismissed.
Written submissions by Neil R. Belmore, Ken Clark, Michael
E. Charles, Christine M. Pallotta and Noel Courage, for the
applicants.
Written submissions by Diane E. Cornish and David W. Aitken,
for the respondent Novopharm Ltd.
The following order was delivered by
1
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.
2
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.
3
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.
4
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.
5
For these reasons, the application for an extension of
time is dismissed with costs.
Motion dismissed with costs.
Solicitors for the applicant Janssen-Ortho Inc.: Gowling Lafleur
Henderson, Toronto.
Solicitors for the applicant Daiichi Pharmaceutical Co.: Bereskin
& Parr, Toronto.
Solicitors for the respondent Novopharm Ltd.: Osler,
Hoskin & Harcourt, Ottawa.
Solicitor for the respondent the Minister of Health: Department of
Justice, Ottawa.
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