Patrick Smith

The plaintiff, an elderly man in long-term care, brought an urgent motion to remove Notices of Security Interest (NOSIs) registered on his property's title by the defendants, who are alleged to be involved in a door-to-door HVAC and financing scheme.

The property was sold under mortgage enforcement proceedings and the sale could not close with the NOSIs on title.

The defendants did not respond to the motion.

The court ordered the NOSIs removed upon the plaintiff's undertaking to hold sufficient funds in trust, validated service, ordered the defendants to produce the underlying security agreements within 15 days, and appointed the plaintiff's daughter as his litigation guardian.

This endorsement addresses a refusals motion where the defendants, Eli Lilly, sought to question the plaintiff, Apotex, regarding communications with the government during Apotex's abbreviated new drug submission (ANDS) process.

Apotex argued that its drug approval process was immune from challenge by Lilly.

The court distinguished between an impermissible collateral attack on Health Canada's regulatory approval and a permissible inquiry into factors that might affect the "start date" for damages under s. 8(1)(a)(ii) of the Patented Medicines (Notice of Compliance) Regulations.

The court found Lilly's request to be probative of a properly pleaded issue concerning the quantum of damages, rather than the validity of the approval itself.

Consequently, the motion was granted, and the question was ordered to be answered.

The defendants moved to strike parts of the plaintiff's statement of claim, which sought damages for the delay in marketing its generic drug caused by the defendants' actions under the Patented Medicines (Notice of Compliance) Regulations.

The plaintiff claimed damages under s. 8 of the Regulations, unjust enrichment, and the Trade-marks Act after the defendants' patent was declared invalid.

The court dismissed the motion to strike these claims, finding they had a reasonable prospect of success and raised unsettled legal questions, but struck a bald claim for remedies 'otherwise available at law'.