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19 June 2019
On 24 April 2019 the Federal Court of Appeal affirmed the Federal Court's dismissal of Apotex's application for judicial review of a decision by the minister of health relating to its Apo-Omeprazole (omeprazole magnesium) delayed-release tablets.(1) The minister had issued a Notice of Non-Compliance – Withdrawal (NON-W) letter in respect of Apotex's abbreviated new drug submission on the basis that the tablets were not bioequivalent to the relevant Canadian reference product. Apotex sought reconsideration, but after the parties could not agree on the formulation of the question for reconsideration, the minister cancelled the reconsideration process and issued a final NON-W letter.
On judicial review of that decision (for further details please see "Court rejects Apotex's application for judicial review of omeprazole magnesium tablet submission"), Apotex argued that the minister had improperly fettered her discretion by insisting that the question include consideration of bioequivalence. Justice Roy concluded that the minister's question was reasonable, and that excluding bioequivalence in favour of safety and efficacy only "would be outside the scope of the Regulations".
On appeal, Apotex additionally argued that the minister had no authority to cancel the reconsideration process entirely, and that it had a legitimate expectation that the reconsideration process would continue despite its ongoing dispute with the minister regarding the proper question. The Federal Court of Appeal declined to consider the legitimate expectations issue on the basis that it was not properly before it and, for the reasons given by the Federal Court, was satisfied that the question as framed by the minister was reasonable.
For further information on this topic please contact Abigail Smith at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email (firstname.lastname@example.org). The Smart & Biggar website can be accessed at www.smart-biggar.ca.
(1) Apotex Inc v Canada (Health), 2019 FCA 97.
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