The Supreme Court of Canada has granted leave for the appeal of Nu-Pharm Inc. v. Canada, 2008 FCA 227 which held that Nu-pharms action was outside the jurisdiction of the Federal Court and any remedy should have been sought by way of judicial review.
Nu-pharm obtained an NOC for its generic drug Nu-enalapril but this NOC was later quashed by the Federal Court of Appeal on an application brought by Merck under the PM(NOC) regulations. Nu-pharm wrote to Health Canada and alleged that it did not require an NOC because Nu-enalapril was no longer a new drug. Health Canada rejected this position.
Nu-pharm started a judicial review of this decision in the Federal Court and a declaration that the Minister had no authority to require an NOC and to retract statements made that the sale of the drug would be unlawful. This judicial review application was discontinued by Nu-pharm.
Nu-pharm later started the action subject to this appeal for damages against the Crown as compensation for its loss for not being able to sell Nu-enalapril. The Minister brough a motion for summary judgment on the basis that Nu-pharm could only obtain its remedy if it had been successful on its now discontinued judicial review application.
The Federal Court of Appeal held that the Federal Court has exclusive jurisdiction to grant declaratory relief against federal agencies by way of judicial review under section 18.1 and allowed the Minister's motion for summary judgment.
The appeal at the Supreme Court may be followed as Nu-Pharm Inc. v. Her Majesty the Queen in Right of Canada, et al. (Case ID: 32830).