As we reported, the Federal Court (FC) has suspended its hearings scheduled between March 16, 2020 and April 17, 2020 (the Suspension Period) sine die. Proceedings brought in accordance with the Patented Medicines (Notice of Compliance) Regulations (Regulations) fall under the FC's jurisdiction. However, certain deadlines related to these proceedings are set by the Regulations themselves. Such 'statutory' deadlines are not subject to the FC's Suspension Period.
As the FC states in its recent FAQ on its COVID-19 Practice Direction and Order, the deadline for commencing a proceeding pursuant to section 6 of the Regulations continues to apply and cannot be extended or varied. This is because the power to vary or suspend this deadline (and other statutory deadlines) lies with the Government of Canada and not with the Court.
While some provinces, such as Ontario and Québec, have suspended limitation periods and procedural time periods in light of the COVID-19 pandemic, the Government of Canada has yet to do the same. Thus, parties receiving a notice of allegation must still bring an action within 45 days of being served, and must still complete the proceeding within the 24-month stay period.
Although statutory deadlines for PM(NOC) proceedings cannot be varied, many steps following the initiation of a PM(NOC) proceeding are subject to the FC's Suspension Period (e.g., hearings for interlocutory motions such as refusals motions and related motion materials). The postponement of interlocutory steps may eventually add additional pressure to the parties and the Court in trying to complete these proceedings within the 24-month stay period.
In light of this, parties (and prospective parties) may wish to prioritize PM(NOC) proceedings and deadlines during the pandemic. Counsel who are effective at working cooperatively with both the opposing side and the Court will best navigate this challenging time. Parties should seek guidance from counsel on their specific matters to formulate a plan for proceeding during the pandemic so as to preserve the rights granted to them by the Regulations.
For more information on the legal implications of COVID-19, please consult our COVID-19 Hub. As a full service global firm with offices across Canada, Norton Rose Fulbright is closely monitoring this evolving situation over a number of practice areas including employment and labour, risk advisory, banking and finance, corporate, M&A and securities, and dispute resolution and litigation, and across a variety of industries including energy, infrastructure, mining and commodities, financial institutions, life sciences and healthcare, technology and innovation, and transport.
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