Paula Bremner

The appellants' action was administratively dismissed for delay after their solicitors failed to receive a status notice sent to the wrong address.

The motion judge refused to set aside the dismissal, finding the appellants failed to adequately explain the delay or prove a lack of prejudice to the respondent.

The Court of Appeal allowed the appeal and reinstated the action, holding that the motion judge failed to give sufficient weight to the non-receipt of the status notice and erred in his assessment of prejudice by ignoring the respondent's own passivity in the litigation.

The plaintiffs moved to reinstate an action that had been dismissed following a status notice process under the Rules of Civil Procedure.

The court considered the applicable reinstatement principles from Reid v. Dow Corning and the Faris test, including whether the delay was adequately explained and whether prejudice resulted.

The court found the plaintiffs failed to justify delay and failed to demonstrate absence of prejudice, particularly given the death of a key defendant whose evidence had not been preserved.

Settlement discussions and procedural missteps, including bringing the motion improperly and failing to advance the action, weighed against reinstatement.

The action against the remaining corporate defendant was dismissed with costs.

The appellants challenged the validity of the respondents' patent for the use of AZT in the treatment and prophylaxis of HIV/AIDS.

The appellants argued that the patent lacked utility at the time of application, claimed more than was invented, and failed to name NIH scientists as co-inventors.

The Supreme Court of Canada dismissed the appeal, holding that the utility of AZT was established through the doctrine of sound prediction at the time of the patent application.

The Court also found that the prophylactic claims were soundly predicted and that the NIH scientists were not co-inventors because they merely verified the respondents' inventive concept.