Date: 19980514
Docket: T-418-98
BETWEEN:
MERCK FROSST CANADA INC.
- and -
MERCK & CO., INC.
Applicants
- and -
THE MINISTER OF HEALTH
- and -
APOTEX INC.
Respondents
ORDER AND REASONS FOR ORDER
RICHARD J.:
[1] The applicants have appealed the order of Pinard J. dated March 26, 1998, where he fixed a timetable for the filing of evidence by the parties to the Notice of Compliance proceedings.
[2] By motion before the Trial Division, the applicants seek an amendment to the order of Pinard J. extending the time for the filing and serving of their evidence until seven days following the decision of the Court of Appeal, which has scheduled a hearing for June 26, 1998. The applicants claim that they would be prejudiced if they were required to file and serve their evidence before the decision of the Court of Appeal is handed down.
[3] The respondent, Apotex, objects to the applicants' motion on the ground that it is in reality an application for a stay of the order of Pinard J. pending the appeal, which must be sought and obtained from the Court of Appeal and on the ground that, in any event, the applicants have not met the test for an extension of time.
[4] The applicants are, in reality, seeking from the Trial Division an order in the nature of a stay of the order of Pinard J. until the disposition of their appeal. The applicants have a remedy under Rule 398(1)(b) of the Federal Court Rules, 1998. They can apply to the Federal Court of Appeal for a stay of the order of Pinard J. pending the disposition of the appeal from his order. The Trial Division cannot, in the circumstances, make such an order.
[5] Accordingly, the applicants' motion is adjourned to allow the applicants to apply to the Federal Court of Appeal for a stay of the order of Mr. Justice Pinard.
__________________________
Judge
Ottawa, Ontario
May 14, 1998