Nu-Pharm Inc. v. Canada, 2008 FCA 227 (2008)

Federal Court of Appeal

Docket Number: A-486-07

Parts: Nu-Pharm Inc. v. Canada

Reporting Judge: LINDEN J.A.

Linked as:

Extract

Nu-Pharm Inc. v. Canada, 2008 FCA 227 (2008)

Date: 20080703

Docket: A-486-07

Citation: 2008 FCA 227

CORAM: LINDEN J.A.

NADON J.A.

SEXTON J.A.

BETWEEN:

NU-PHARM INC.

Appellant

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA ,

THE ATTORNEY GENERAL OF CANADA , and THE DIRECTOR

GENERAL, THERAPEUTIC PRODUCTS DIRECTORATE OFHEALTH CANADA

Respondent s

Heard at Toronto, Ontario , on May 26, 2008.

Judgment delivered at Ottawa, Ontario , on Ju ly 3, 2008.

REASONS FOR JUDGMENT BY: NADON J.A.

CONCURRED IN BY: LINDEN J.A.

SEXTON J.A.

Date: 20080703

Docket: A-486-07

Citation: 2008 FCA 227

CORAM: LINDEN J.A.

NADON J.A.

SEXTON J.A.

BETWEEN:

NU-PHARM INC.

Appellant(s)

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA ,

THE ATTORNEY GENERAL OF CANADA , and THE DIRECTOR

GENERAL, THERAPEUTIC PRODUCTS DIRECTORATE OFHEALTH CANADA

Respondents

REASONS FOR JUDGMENT

NADON J.A.

[1] This is an appeal from a decision of Hugessen J. of the Federal Court in Nu-Pharm Inc. v. Canada , 2007 FC 977, who, on a motion for summary judgment, dismissed the appellant’s (the “appellant” or “Nu-Pharm”) action for damages on the ground that the action did not raise a genuine issue for trial.

[2] More particularly, relying on this Court’s decision in Grenier v. Canada , 2005 FCA 348, [2006] 2 F.C. 287 (CA), Hugessen J. concluded that since the relief sought by the appellant in its action was contingent upon a determination by the Federal Court that decisions made by the Director General of the Therapeutic Products Directorate of Health Canada (the “Director General”) were unlawful and that such a determination could only be made if the decisions were challenged by way of a judicial review application, it necessarily followed that the appellant’s action could not possibly succeed without such a prior determination. This led the learned Judge to make the following Order:

THIS COURT ORDERS that

1. The motion is allowed and the action is dismissed.

2. Paragraph 1 of the present Order is stayed for a period of 30 days to allow the pl...

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