Delisle v. Canada (Attorney General) et al., 2004 FC 788

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: May 25, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FC 788;(2004), 258 F.T.R. 268 (FC)

Delisle v. Can. (A.G.) (2004), 258 F.T.R. 268 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] F.T.R. TBEd. JN.022

Léopold Delisle (applicant) v. Attorney General of Canada and Department of Health (Health Canada) and Director General Therapeutic Products Directorate (Health Canada) (respondents)

(T-698-04; 2004 CF 788; 2004 FC 788)

Indexed As: Delisle v. Canada (Attorney General) et al.

Federal Court

Tremblay-Lamer, J.

May 31, 2004.

Summary:

The applicant sought an interlocutory order that the respondents (Health Canada et al.) accept the requests for special access to a drug by physicians, without further requirements or conditions, within 24 hours of receipt of such requests, irrespective of whether the patients who were covered had previously been so authorized.

The Federal Court dismissed the application.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - The applicant sought an interlocutory order that the respondents (Health Canada et al.) accept the requests for special access to a drug by physicians, without further requirements or conditions, within 24 hours of receiving such requests, irrespective of whether the patients who were covered had previously been so authorized - The Federal Court dismissed the application - Section 8.010 of the Food and Drug Regulations created a discretionary authority, not an obligation, to issue special access authorizations - The applicant was seeking mandamus - The court could order the performance of a public duty but it could not dictate the appropriate result when the authority conferred by the enabling provision was discretionary - Furthermore, mandamus was not available here because it would be an interim declaration of right.

Administrative Law - Topic 3510

Judicial review - Mandamus - General - Review of exercise of discretionary power - [See Administrative Law - Topic 3503 ].

Food and Drug Control - Topic 1116

Drugs - New drugs - Special access for emergency treatment - [See Administrative Law - Topic 3503 ].

Cases Noticed:

Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 12].

Martinoff v. Canada et al., [1994] 2 F.C. 33; 165 N.R. 309 (F.C.A.), refd to. [para. 12].

Minister of Employment and Immigration v. Kahlon, [1986] 3 F.C. 386 (F.C.A.), refd to. [para. 12].

Paquette v. Canada (Attorney General) (2001), 211 F.T.R. 179 (T.D.), refd to. [para. 13].

Brissette v. Canada (Minister of Citizenship and Immigration) (2002), 228 F.T.R. 314 (T.D.), refd to. [para. 13].

Counsel:

Michel Bélanger and Yves Lauzon, for the applicant;

Camela Maiorino, for the respondent.

Solicitors of Record:

Lauzon Bélanger Avocats, Montreal, Quebec, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This motion was heard at Ottawa, Ontario, on May 25, 2004, by Tremblay-Lamer, J., of the Federal Court, who delivered the following decision on May 31, 2004.