Federal Court Of Appeal Clarifies Standard For Granting Leave In NOC Cases

• Published date: 11 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Compliance, Trials & Appeals & Compensation
• Law Firm: Borden Ladner Gervais LLP
• Author: Ms Beverley Moore and Chantal Saunders

When the Patented Medicines (Notice of Compliance) Regulations (the NOC Regulations) were amended in 2017, the procedure governing their proceedings was amended to, among other things, provide that an appeal from any interlocutory order would be heard by the Federal Court of Appeal (FCA) only with leave.¹ This introduced two changes: (i) removing an appeal to a Federal Court judge from a decision of a Prothonotary, and (ii) introducing a requirement to obtain leave. The FCA has since heard many motions for leave, but has not issued reasons with respect to those motions. In a recent decision, the FCA issued reasons outlining the criteria under which leave to appeal would be granted,² bringing clarity to the matter.

The appellate standard of review

The Court stated that the normal standard for granting leave is a 'fairly arguable case', but that this evaluation must take place in the context of the appellate standard of review. Thus, if the review standard is correctness, the appellant must show that the decision below was arguably wrong. Further, if the review standard is palpable and overriding error, the appellant must show it can overcome that deferential standard. The deference the FCA gives to case management orders adds to this burden. The FCA held that 'good counsel, in pursuing the interests of their clients...