What is the effect of the Minister’s appeal against the interim decision of the Court of Appeal finding that a new Formulary which includes the products of all five drug companies does not need to be included in the Formulaary?

As already indicated, in July 2004, the Minister published a new Formulary which included the products of all five drug companies. Both the interim decision and final decision of the application judge have been complied with and have no continuing application. In our view, even if the Minister were successful on the appeal, the result could not now have any practical effect on the rights of the parties. All the parties have now complied with the requirements for having their drugs listed. If the order for judicial review were now set aside, they would still all be entitled to be listed in the Formulary. Allowing the appeal would achieve nothing. As the issue cannot now be revisited and a decision of this court will not have the effect of resolving some controversy which affects or may affect the rights of the parties, the Minister’s appeal is moot: see Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at 353.