Judicial Review – An Overview
In Canada, many governmental decisions are delegated to public tribunals, boards and agencies. In the patent and drug regulatory domain, this includes decisions relating to: This includes.
- Notices of non-compliance
- DIN suspensions
- Import bans
- Access to informtion requests
- Data protection
- PMNOC patent listings
- PMPRB hearings
- Certificates of supplementary protection
Decisions made by tribunals, boards and agencies may be reviewed by courts to ensure that the decision-maker acted “reasonably”. On “judicial review application” the Court considers the administrative decision in light of the record and statutory framework to ensure it is transparent, intelligible and justified. The Court does not normally admit new evidence and only considers the record that was before the administrative body. The Court does not generally make findings of fact or pass judgment on whether the underlying decision was “correct”.
Judicial review applications in the Federal Court are heard by a judge alone (no jury) approximately 6-9
months after they are filed. Urgent applications can be expedited. Decisions are
often taken under reserve for approximately 1-3 months. Time lines in provincial courts vary.
If a judicial review application is allowed, the Court will usually remit the matter to
the administrative decision maker for reconsideration with the benefit of its
reasons. In exceptional cases, the Court will exercise its discretion to
make the order that the administrative decision-maker ought to have made. The successful party is entitled to
recover a portion of its legal fees and disbursements from its opponent.