FOOD AND DRUGS |
Delisle v. Canada (Attorney General)
T-698-04
2004 FC 788, Tremblay-Lamer J.
31/5/04
7 pp.
Motion for interlocutory order requiring respondents to allow requests for special access to drug 714-X made by physicians, without further requirements, conditions, within 24 hours of receipt of such requests for access--In 1989, applicant diagnosed with disease of immune system called mastocytosis, rare disease for which as yet no medication-- Food and Drug Regulations (Regulations), s. C.08.010 creating discretionary authority, not obligation, to issue authorizations for special access--Applicant asked Court to order respondents to issue authorizations for special access-- Obvious relief sought by applicant mandamus--Court may, in context of application for mandamus, order performance of public duty but cannot dictate appropriate result when authority conferred by enabling provision discretionary-- Issuance of writ of mandamus not possible in such circumstances, for it would constitute in fact interim declara-tion of right--Moreover, Court cannot order respondents to allow requests for access to 714-X "without further requirements or conditions", for such order would violate provisions of Regulations which stipulate conditions that must be met by physician requesting access before Director General can exercise discretion--Motion dismissed--Food and Drug Regulations, C.R.C., c. 870, s. C.08.010.