The Power of Perspectives

The Canadian Bar Association

Kim Covert

Strict timetables are good, a little leeway is better

February 23 2018 23 February 2018

 

Setting strict schedules is all well and good, but a little flexibility is important when all doesn’t go according to plan.

That was one of the messages from the CBA’s Intellectual Property Section in its response to the Federal Court’s proposed Patented Medicines (Notice of Compliance) timetable checklist. The Section would like to retain the document’s structure and content – with one broad proviso: it needs flexibility.

The issue of appeals of generic drug approvals was raised in negotiations leading to the Canada-European Union trade agreement. Revised regulations under Bill C-30, the Canada-European Union Comprehensive Economic and Trade Agreement Implementation Act, replaced summary proceedings with full actions leading to final determinations. The Federal Court proposed the timetable checklist to guide the management of new actions.

“Even when an initial schedule has been agreed, the Checklist should be consulted as an ongoing resource, with departures made when and where appropriate,” the Section says. “In brief, there should be leeway for parties to run their cases and be creative, knowing that not all steps can be anticipated and planned thoroughly at first instance.”

The Section had a number of other suggestions, here are a few of them:

The Section’s members appreciate the court’s desire to limit trials to two weeks, but say the court should have the discretion to adjust the length of a trial as necessary, taking into account the nature of the proceeding. The Section recommends two weeks be set aside for evidence and two days for oral argument, with a short break between the two.

The Section also recommends that the first case management conference take place once pleadings have closed in order to better inform the decisions of the parties and the court.

As well, while the timetable is currently set out thematically, the Section says a chronological order would be more user-friendly.

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