[1] A copy of these Reasons is filed today in court file T-1970-99 and applies there accordingly. The Court made an order of prohibition preventing the Minister of Health from issuing Notices of Compliance to the Respondent, Genpharm Inc. (hereafter "the Respondent") in connection with its tablets containing 200 mg (T-1970-99) and 400 mg (T-1825-99) of the drug etidronate disodium until after the expiration of the Applicants' reissued Canadian Letters Patent No. 1,338,376. Said patent addressed a new way of using an existing drug in intermittent cycles to treat osteoporosis. The Respondent's appeal was dismissed with costs.

[2] These matters were heard together and the Court's award of costs (May 2, 2002) read:

The applicants are entitled to costs to be assessed at the top end of Column IV for Court File No. T-1825-99 and for the 3 motions: motion for reply evidence, motion for production of respondents' ANDS and motion to compel answers from the cross-examination of Dr. Pike.

The applicants shall also be entitled to costs at the mid range of Column III for Court file T-1970-99 for the Notice of Application therein and the written argument. The applicants shall be entitled to costs for 1 senior counsel and 1 junior counsel for its motion under subsection 6(7) of the Patented Medicines (Notice of Compliance) Regulations and its motion to compel answers from the cross-examination of Dr. Pike and at the hearing of the two applications. The applicants shall be entitled to all fees and expenses relating to the 4 expert affidavits the applicants filed in these proceedings and all reasonable photocopying, facsimile, courier and long distance expenses as noted on assessment, if necessary. The applicants are also entitled to costs for this motion.

The Applicants filed a single bill of costs incorporating the costs for both actions. Before me, and in subsequent written submissions, the parties agreed that five items remained in issue. They further agreed on reduced amounts for facsimiles ($864.19 reduced to $450.00); couriers ($1,399.82 reduced to $750.00) and process servers ($676.61 reduced to $300.00). The other fees and disbursements not in issue are allowed as presented. The record contains detailed outlines of each side's position: these Reasons summarize them and those submissions advanced at the hearing before me, but not reiterated in the written materials.

Item 5 Maximum Column IV costs (9 units = $990.00) claimed for preparation of the motion in T-1825-99 for directions to the assessment officer concerning costs of these proceedings

The Parties' Positions

[3] The Respondent argued that only the mid-range value of 5 units ($550.00) in Column III should be allowed because the Court did not specifically authorize Column IV costs for this motion. The Applicants argued that it follows, as a function of the award of top end Column IV costs for T-1825-99, that the costs for the associated motion for directions should also be assessed at the top end of Column IV. If the Court had intended otherwise, ie. lower end Column III, it would have so indicated.

Assessment

[4] The Respondent is correct. The Applicants' motion for directions sought solicitor-client costs for these proceedings and, in the further alternative, top end Column V costs. The Court responded with something less than that, but generally still more than the ordinary Column III limit imposed by Rule 407 in the absence of language to the contrary. My conclusions in Webster v. Canada (Attorney General) 2003 F.C.J. 1652 are applicable here. The motion for directions was an interlocutory event and its associated award of costs, although occurring within the same order for costs of the substantive events of the litigation and for three other interlocutory events, represented a Rule 400(1) exercise of jurisdiction specific only to the event of the motion for directions and independent of the four other Rule 400(1) exercises of jurisdiction, ie. events of the prohibition, reply evidence, production of the Respondent's ANDS (Abbreviated New Drug Submission) and compel answers from the cross-examination of Dr. Pike. The wording of the award of costs for the motion for directions, "...also entitled to costs for this motion", does not meet the "otherwise" threshold set by Rule 407. Therefore, the Applicants are limited to Column III costs which I allow at 6 units ($660.00).

Counsel fees for preparation of expert affidavits: Ronald Dimock (12.1 hours @ $500.00 per hour) + Andrew Shaughnessy (113.9 hours @ $250.00 per hour) + Cedric Lam (16.4 hours @ $170.00 per hour) + articling student Michael Vaillancourt (58.2 hours @ $110.00 per hour) totalling $43,715.00 + GST

The Respondent's Position

[5] The Respondent argued that $43,715.00 is unreasonable, being equivalent to a full indemnity and exceeding a reasonable calculation of solicitor-client costs per Maison des Pâtes Pasta Bella Inc. v. Olivieri Foods Ltd. (1999), 86 C.P.R. (3d) 356 (F.C.T.D.) at paras. 6 and 25. This amount, plus associated disbursements, constitutes approximately one-half of the total $111,462.12 claimed in the Applicants' bill of costs. Further, the Court did not award solicitor-client costs notwithstanding the request to do so in the Applicants' motion for directions and therefore they are limited to the partial indemnity contemplated by Apotex Inc. v. Syntex Pharmaceuticals Int. Ltd. (1999), 2 C.P.R. (4^th) 368 (F.C.T.D.) at para. 2, affirmed (2001), 12 C.P.R. (4^th) 413 (F.C.A.).

[6] The Respondent argued that the evidence fails to disclose the year of call of the three lawyers, does not establish the reasonableness of their hourly rates, and does not detail the relevance of the time docketed by either Mr. Lam or Mr. Vaillancourt other than to append the client ledger. Nothing should be allowed for these latter two individuals because the time dockets disclose that their work either was extensively reviewed and revised by Mr. Shaughnessy and/or Mr. Dimock or it duplicated work performed by these latter two counsel. The Respondent should not have to bear the overhead expense for the Applicants' solicitor of record to train and educate an articling student and a junior associate, ie. Mr. Vaillancourt revised the affidavit of Dr. Alan Tenenhouse on November 5, 1999, and then Mr. Shaughnessy also made revisions that same day. Further, the time of articled students is not assessable in bills of costs.

[7] The Respondent argued that the evidence does not establish necessity for Mr. Vaillancourt's work on November 1 and 10, 1999, ie. the second visit was an unnecessary personal attendance in Montreal to commission the affidavit of Dr. Tenenhouse given that the evidence for December 7 and 8, 1999, discloses that an agent was used to commission his affidavit in T-1970-99. The entry for December 8, 1999 discloses telephone calls by Mr. Vaillancourt to certain individuals without any explanation of relevance for the expert affidavits. The Respondent made similar objections for all work by Mr. Vaillancourt and asserted that nothing should be assessable for his time, which essentially was an educational exercise.

[8] The Respondent argued that the evidence discloses, in a series of entries for October 29 to December 1, 1999, several instances of duplication of work relative to Mr. Dimock and Mr. Shaughnessy, ie. preparation for and meeting with clients, reviewing draft affidavits and meeting with Dr. Tenenhouse. The evidence does not explain why, for example, both lawyers had to meet with the clients on October 29, 1999, yet each charged a different number of hours (5 and 8 hours respectively). The same argument applies to these two lawyers, and Mr. Vaillancourt, for their meetings with Dr. Tenenhouse on November 6, 1999 (0.8, 8.7 and 7.2 hours respectively).

[9] The Respondent argued that the evidence for Mr. Shaughnessy's work was inconsistent, ie. paras. 8 and 9 in the supporting affidavit (of Ronald E. Dimock sworn June 20, 2003) note 0.5 hours (T-1825-99) and 0.4 hours (T-1970-99) for him for October 24 and November 24, 1999 respectively, but there are no underlying recordings of time in the client ledger. The Respondent argued that the evidence does not explain the purpose or necessity for Mr. Shaughnessy's attendance on November 1, 1999, in Montreal with Dr. Tenenhouse. The Respondent argued that a series of entries for his work for October 20 to December 10, 1999, but excluding December 1, 1999 (counsel for the Respondent corrected, before me, an error in her written submissions that had asserted an instance of hours claimed exceeding the hours recorded in the client ledger for that date), represent charges unrelated to the expert affidavits, ie. receipt of a notice of appearance; administrative or secretarial time to arrange flights to Montreal; redactions in the client ledger on certain days without a corresponding reduction of the hours claimed and an instance of hours claimed exceeding hours recorded in the client ledger. The Respondent argued generally, given that the evidence is insufficient to resolve various issues of reasonableness and accuracy and given that the work for T-1970-99 mirrored that for T-1825-99, that a reduced amount of $25,000.00 + GST would be suitable.

The Applicants' Position

[10] The Applicants argued that the phrase "all fees and expenses" in the award of costs means the actual hours billed to the client for reasonable and relevant work. These hours were clearly proved in the evidence, ie. client ledgers disclosing time spent by each lawyer and a description of the work completed in each time entry. The time entries were then further distilled in the evidence leaving only claims for those hours relating solely to these four experts, as limited by the award of costs. The Respondent's suggested reduction to $25,000.00 is made without an underlying explanation of the basis for its calculation. The Applicants argued that Rule 306 imposed a short time limit (30 days) to prepare four experts and that there is no authority limiting the number of lawyers assigned to a case. It is reasonable and efficient to assign lawyers with lower billing rates if possible, ie. Mr. Lam and Mr. Vaillancourt. The short deadline justified the use here of multiple counsel, including an articling student, to complete the work and the evidence clearly sets out their billing rates..

[11] The Applicants asserted that the evidence clearly establishes the relevance of the preliminary or preparatory work of Mr. Lam and Mr. Vaillancourt, work revised and focused by Mr. Shaughnessy, but not redone or duplicated. The Applicants argued further to Apotex v. Syntex, supra at para. [22], that item 28 in the party and party scale of Tariff B contemplates claims for articling students, such as Mr. Vaillancourt. The Applicants argued that the series of time entries for November 1 to 6, 1999, clearly establishes the relevance of the work of Mr. Dimock, Mr. Shaughnessy and Mr. Vaillancourt, required to be done further to a tight deadline, in meeting with Dr. Tenenhouse in Montreal to prepare his affidavit. The evidence for November 10, 1999, is that no hours are claimed to commission the affidavit of Dr. Tenenhouse and that only 2.6 hours, for revisions to the affidavit of D.A. McClenaghan, are claimed from the 8.6 hours in the client ledger. The evidence for December 8, 1999, is that Mr. Vaillancourt's telephone contacts were to arrange commissioning of the affidavits of Tom Brogan, Peter Cook and Dr. Tenenhouse. Disbursements for travel were avoided where possible.

[12] The Applicants argued that it was reasonable for both Mr. Dimock and Mr. Shaughnessy to have been involved with the experts as both were senior solicitors of record. Expert affidavits are critical events in these types of proceedings because there is no oral evidence. The Applicants asserted that variances in hours claimed by each of these two lawyers for work on the same day confirms that each, in fact, was performing a different task, ie. Mr. Dimock, as the most senior lawyer, was involved at the key final stages. Further, the evidence disclosing work by Mr. Shaugnessy, the more junior of these two counsel, to draft and revise affidavits for Mr. Dimock's final review, confirms an efficient approach and an absence of duplication of work. The work done first for T-1825-99 made the work easier for T-1970-99, thereby reducing claimed costs.

[13] The Applicants argued that the evidence for October 20 and 31, 1999, confirms that Mr. Shaughnessy's time for activities unrelated to the experts, ie. notice of appearance and arranging flights, was not claimed. The Applicants argued that inadvertent reversals of hours and dates in certain entries resolve other concerns for claims for excessive hours. The Respondent chose not to cross-examine on the affidavit filed in support of the bill of costs and therefore that evidence should stand uncontradicted as sworn notwithstanding the Respondent's concerns for things such as redactions.

Assessment

[14] It is well settled that the term "costs", in a judgment or order, means counsel fees plus disbursements: see Bill of Costs and Assessment, Federal Court Practice - 2003 Update, September 19, 2003, The Continuing Legal Education Society of British Columbia. Therefore, directions in awards of costs for payment of experts are not absolutely necessary because the Tariff already addresses such disbursements. Directions, such as here for "all fees and expenses relating to the 4 expert affidavits", are very relevant when they tailor or restrict the extent of indemnification of given categories of costs. Such directions sometimes attract differing interpretations.

[15] One interpretation could be that "fees" refers to counsel fees and essentially equates to solicitor-client costs as a special subset within the general partial indemnity award of party and party costs. The term "expenses" then would refer to disbursements to these four experts for their services. These disbursements would then break down into two components: "fees" payable for the professional, but non-counsel, time of each expert and "disbursements" within the account of each expert.

[16] A second interpretation could be that only party and party costs (a partial indemnity) were awarded in response to a specific request by the Applicants for solicitor-client costs and therefore the Court did not intend that solicitor-client indemnification of costs occur in whole or in part. That conclusion is reinforced by the provision for the highest Column IV costs in T-1825-99, a departure from the ordinary Rule 407 restriction to Column III costs. That is, the Court recognized that this matter warranted special considerations for costs, but not to the extent of solicitor-client costs. Of course, it could be argued conversely that the concession by the Court of elevated costs for T-1825-99, but not for T-1970-99, indicates that it felt that given stages of this litigation warranted varying costs considerations and therefore solicitor-client costs relating only to these four experts were simply a function of that conclusion.

[17] Tariff B1(3)(a), providing for "disbursements, including...payments to witnesses under Tariff A", would necessarily have addressed the non-counsel fees for the time of these four experts as a function of the award of Column IV and III costs for T-1825-99 and T-1970-99 respectively. The subsequent reference in the award of costs to "all fees and expenses relating to the 4 expert affidavits" would then simply be seen as confirmation that no issue should arise as to the necessity for or relevance of (my emphasis) these experts. Further, as the costs awarded earlier in the order would necessarily imply counsel fees + disbursements, and as the reference to fees and expenses for the four experts occurred in the same sentence confirming entitlement to a series of items of costs ordinarily considered to be litigation disbursements, ie. photocopies, facsimiles, couriers and long distance tolls, it is arguable that the plain intent of this sentence was for disbursements, but not counsel fees, and therefore it was not intended to authorize solicitor-client costs for a given stage of this litigation. Finally, the absence of any sense of punitive considerations in the judgment on the substantive issues of this litigation, the usual factor underlying a solicitor-client award of costs, implies that the Court, faced with the motion for such costs, did not award solicitor-client costs in whole or in part.

[18] The Applicants' Notice of Motion for directions as to costs sought:

1. An Order awarding solicitor and client costs to P & G in an amount to be fixed by the Court;

2. In the alternative, an Order awarding costs to P & G and giving directions to the Assessment Officer that costs shall be payable on a solicitor and client scale and shall include the following fees and expenses:

(a) All photocopying charges, long distance telecommunication charges including facsimile charges and courier charges relating to the proceeding in question;

(b) All expenses incurred by P & G relating to the expert affidavits filed by P & G in the herein proceedings....

3. In the further alternative, an Order awarding costs to P & G in accordance with Tariff B, Column V, in the maximal allowable units and directing the Assessment Officer to assess and allow the following fees and expenses:

(a) All photocopying charges, long distance telecommunication charges including facsimile charges and courier charges relating to the proceeding in question;

(b) All expenses incurred by P & G relating to the expert affidavits filed by P & G in the herein proceedings....

4. The costs of this motion....

THE GROUNDS FOR THE MOTION ARE:

. . .

3. On October 23, 2001, Mr. Justice McKeown issued his Reasons in association with the October 15, 2001 amended Order, in which he disposed of the proceeding on the basis that the Notice of Allegation was fatally flawed and as a consequence, could not justify Genpharm's allegation that no infringement would occur.

4. Genpharm's fatally flawed Notice of Allegation has unduly complicated and lengthened this proceeding and has been a precursor to the costs incurred by P & G. P & G has been forced to take a number of interlocutory steps in an effort to obtain additional information from Genpharm, which was not put forward in its NOA.

5. Genpharm has also unduly complicated the proceeding through the piecemeal fashion in which it has provided its evidence. Amongst other acts, on August 23, 2001, just days before the proceeding was to be heard, Genpharm provided amendments to its ANDS and product monograph which were made on November 22, 2000. Amendments to these documents were ordered to be produced on April 17, 2000.

6. This proceeding involved complex legal issues. P & G filed four expert affidavits in support of its position. The combined time spent for the preparation of these affidavits in the two related proceedings, T-1825-99 and T-1970-99 was in excess of 100 hours. In addition, at the hearing of the motion for production of portions of Genpharm's ANDS, the motion to compel answers from the first round of cross-examination of Dr. Pike (Genpharm's affiant), and the first and second rounds of cross-examination of Dr. Pike, P & G was represented by both senior and junior counsel.

7. In the year 1999, the Canadian etidronate disodium market was worth roughly $24 million. DIDROCAL®, P & G's innovator product holds roughly 90% of this market, or roughly $22 million in sales and has a growth rate of approximately 50%. Given the amount of money at stake, P & G justifiably incurred significant expense in prosecuting these proceedings....

Paragraph 1 of the Memorandum of Fact and Law filed with the motion read:

...P & G seeks an award of costs on a solicitor and client scale in an amount to be fixed by the court or by the assessment officer. In the alternative, P & G seeks a direction from the court to the assessment officer for costs payable in accordance with Tariff B, Column V, in the maximum allowable units for costs assessed. P & G seeks that costs will include all fees and expenses relating to the expert affidavits filed by P & G in the proceedings, fees for one senior counsel and one junior counsel for certain steps of the proceeding and all photocopying, facsimile, courier, and long distance expenses.

Paragraph 30 of these written representations does not use the word "fees" relative to the experts, but does use the words "full compensation".

[19] The Respondent opposed the first proposition (lump sum solicitor-client costs) generally on the basis that they would preclude disclosure of full and detailed particulars of costs. The Respondent opposed the alternative proposition (solicitor-client costs, including directions for costs relating to preparation of these four experts) and the further alternative proposition (Column V party and party costs, including directions for costs relating to preparation of these four experts), argued that an award of Column III party and party costs was sufficient and specifically asserted the absence of punitive factors which could warrant solicitor-client costs. The Respondent opposed any costs relating to preparation of these four experts and argued (at para. 53 of its Amended Memorandum of Fact and Law) that if the Court did allow costs relating to preparation of these experts, "the Applicants should first provide to Genpharm full particulars of the costs incurred in this regard, namely the combined fee of $37,313.99 [sic] and the disbursement of $11,430.00 as set out in the Draft Bills of Costs."

[20] The source of the $37,313.00 (for Mr. Dimock, Mr. Shaughnessy and Mr. Lam, but not Mr. Vaillancourt) was clearly apparent, from the draft bills of costs, as a function of something other than the partial indemnity listings for counsel fees in Tariff B. The draft bills of costs before the Court set out partial indemnity item numbers from Tariff B for both Columns III and V and showed possible claims for each. As well, the actual solicitor-client amount was shown beside each partial indemnity item number. The claims for costs relating to preparation of the four experts were shown under the separate columns for solicitor and client costs with a specific notation that there was not a corresponding item number within the partial indemnity item number listings in Tariff B. That is, rather than tendering in evidence three draft bills of costs for each court file, one for each proposition above, the Applicants tendered a single draft bill of costs in each of T-1825-99 and T-1970-99 capable of accounting for each proposition by selective editing. Ordinarily, counsel fees for preparation of experts would be subsumed in the partial indemnity item 13 (preparation for hearing) set out in each draft bill of costs under Columns III and V respectively, but I doubt that either the Court or counsel for the Respondent could have been under the impression that the $37,313.00, ie. a solicitor-client amount, was part of the alternative proposition (solicitor-client costs to be assessed), but not part of the further alternative proposition (party and party costs to be assessed). The Applicants' rebuttal submissions on the motion isolated consideration of these costs from other counsel fee items in the draft bills of costs.

[21] I conclude that the response of the Court to the motion materials was rejection of the first proposition and of the alternative proposition, but approval of a modified version of the further alternative proposition, ie. top end Column IV costs for T-1825-99, mid-range Column III costs for T-1970-99 and, among other things, solicitor-client costs for the preparation of the four experts. If I had concluded that the award of costs was restricted to the partial indemnity limits of party and party costs, I would have been left without jurisdiction to allow even the Respondent's proposed reduction to $25,000.00 on the basis that item 13 generally addresses such work.

[22] Generally, the work reported in the client ledger was relevant and within the parameters of the award of costs, ie. draft expert affidavit, revisions to expert's affidavit etc. The absence of underlying detail for other entries in the client ledger, ie. reviewing documents, receive comments from Andy McClenaghan regarding Tenenhouse etc. makes an objective analysis of relevance more difficult. Some entries, ie. November 5, 1999, contain one or more redactions, yet the full hours billed to the client are claimed. There is no procedural or practice restriction on the number of lawyers to be indemnified as part of solicitor-client costs, except as limited by reasonable necessity. I have been leery of weighing junior versus senior persons as a factor, one way or the other, because of the uncertainty of an appreciable difference between the total costs for either as a function of the junior person's lesser experience possibly requiring more hours at a lower rate versus the senior person's greater experience possibly requiring less hours at a higher rate, all to achieve comparable results. Such considerations are distinct from an evaluation of whether the work itself, regardless of who performed it, was relevant.

[23] The total hours claimed, as a function of four different hourly rates, are 200.6 hours equating on the average, irrespective of variances of complexity or demands of subject expertise, to approximately 50 hours per expert. A conservative estimate of productivity, ie. 6.5 hours per day, results in just under 8 days of counsel work for each expert. If it is assumed that lead counsel had performed all work, then approximately 87 hours ($43,715.00 ) $500.00 per hour) would have been required for the four experts in total in turn equating to about 22 hours per expert, or just over three days for each expert. Regardless of the number of lawyers involved, there must be a figure, or range of figures, expressed in hours or dollars, which represents a reasonable expenditure for success in this litigation. I will apply discretion consistent with my approach in Grace M. Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", in sorting out a reasonable result for costs. A sense of austerity should pervade costs, but real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. The proof here is vague in some respects. I allow $37,500.00 + GST.

Expert fees (Dr. Alan Tenenhouse, Tom Brogan, Peter Cook, Andrew McClenaghan) $11,430.49

Travel expenses (Mr. Shaughnessy and Mr. Vaillancourt to Montreal re Dr. Tenenhouse) $2,928.54

The Respondent's Position

[24] The Respondent noted that, as Mr. Brogan's account represents $8,100.49 of the $11,430.49 and does not meet the threshold for proof of reasonable necessity posed by Allied Signal Inc. v. Dupont Canada Inc. (1998), 81 C.P.R. (3^rd) 129 (F.C.T.D.) (T.O.) at para. 77, a reduced total allowance of $4,050.00 for all experts would be sufficient. Mr. Brogan's daily rate of $2,000.00, coupled with use of a senior analyst at $1,000.00 per day for five days, indicates excessiveness. The Respondent asserted that the trial judge did not need to rely on Mr. Brogan and the Federal Court of Appeal, in its obiter comments, relied upon the Respondent's experts, but not the Applicants' experts. Mr. Brogan's affidavit was essentially statistical analysis, perhaps relevant for issues of possible infringement, but irrelevant as a determining factor for the Federal Court of Appeal. The Respondent noted that Mr. Brogan's affidavit did not disclose his professional credentials thereby making it difficult to assess whether his work was worth the amount claimed, as compared to Dr. Tenenhouse who disclosed impressive credentials, and on whom the Federal Court of Appeal commented favourably, while charging less than one-half of Mr. Brogan's account for the same amount of work. The fact that Mr. Brogan was not cross-examined in the Federal Court did not relieve the Applicants of their obligation to produce all evidence necessary to assess his accounts, including details of his credentials. Mr. Cook, another of the Applicants' experts, also charged much less than Mr. Brogan for the same amount of work. The Respondent argued generally that Mr. Brogan's work for T-1825-99 should have made his work for T-1970-99 easier thereby resulting in a lesser charge.

[25] The Respondent argued that the $2,928.54 for travel should be disallowed because of the lack of evidence, ie. receipts, and the absence of details to substantiate reasonable necessity in turn meaning that the threshold posed by Tariff B1(4) has not been met. The Respondent asserted that its submissions above for Mr. Shaughnessy and Mr. Vaillancourt applied here and noted that the award of costs did not provide for travel expenses.

The Applicants' Position

[26] The Applicants argued that the invoices in the evidence are sufficient proof for these experts. The Respondent's submissions did not disclose the basis for its assertion of unreasonableness relative to Mr. Brogan nor the details of calculation of the proposed reduction to $4,050.00. The Applicants argued that Mr. Brogan's expert evidence was uncontradicted and, differing from the other experts, justified a higher charge. His evidence was more complex and instrumental in establishing that the Respondent's proposed product would be used to treat osteoporosis as opposed to Paget's Disease, as suggested by the Respondent, and it set the stage for the argument that the Respondent's products would interfere with the Applicants' patent rights. The Court considered his evidence, although it did not mention him by name. His affidavits prepared for the two files were similar, but still required work particular to each file. The Respondent lost its opportunity to obtain his credentials when it chose not to cross-examine him. The Applicants argued that it is well established law, per authorities such as Rothmans, Benson & Hedges Inc. v. Imperial Tobacco Ltd. (1993), 50 C.P.R. (3d) 59 (F.C.T.D.), that travel expenses for counsel to interview witnesses, ie. Dr. Tenenhouse, are allowable, if proved by evidence as here. The Applicants argued that the term "expenses", in the phrase "all fees and expenses" in the award of costs, addresses the $2,928.54 for these travel expenses.

Assessment

[27] Dr. Tenenhouse charged $300.00 per hour. That rate would equate approximately to Mr. Brogan's daily rate of $2000.00. Although the Respondent specifically asserted in reply to the Applicants' motion for directions on costs (paras. 48-52 of its Amended Memorandum of Fact and Law in the Responding Motion Record) that Mr. Brogan, Dr. Tenenhouse and Mr. Cook were not relevant to the outcome and therefore no costs or disbursements should be awarded relative to their evidence, the Court approved payment of their accounts. Therefore, although I consider the absence of Mr. Brogan's credentials a serious omission, I did not give it the weight contemplated by the Respondent.

[28] Details in the invoices of work performed are scanty. The expert affidavits, which I read, as end products demonstrate to a certain extent the substance of the work required, but do not by themselves necessarily disclose details of the manner of their production, ie. whether multiple drafts and revisions occurred and the necessity for such work, whether additional people such as the "senior analyst" reduced costs or provided services not within the capability of the expert and, if so, whether that additional expertise was relevant to the issues of the litigation. To the extent that it is applicable here, I apply my approach in Merck & Co. Inc. et al. v. Apotex Inc. [2002] F.C.J. No. 1116 (A.O.), affirmed by [2002] F.C.J. No. 1357 (F.C.T.D.) and Bayer A.G. et al. v. Apotex Inc. et al. [2002] F.C.J. No. 1693 (A.O.) to these accounts for experts. I allow $9,800.00 in total for the four experts.

[29] It is supervising counsel who set and adjust, as necessary, the parameters for the work of experts as a function of a professional legal opinion of the technical assistance necessary to assist the Court in making a decision. In so doing, the steps taken must be prudent, but not excessive. Some of the work may be accomplished by mail, facsimile, telephone or e-mail, but some may require personal attendance. In my view, the general wording of Tariff B1(3) does not require additional and visible directions of the Court in an award of costs to permit the assessment of travel expenses of counsel essential for the preparation of evidence. The operation of item 24 in the partial indemnity Table for counsel fees in Tariff B does not preclude that conclusion because item 24, as part of a list of discrete services for the time of counsel qualifying for partial indemnification, does not address associated disbursements. I allow the $2,928.54 as presented.

Photocopies: $21,091.21 claimed

The Respondent's Position

[30] The Respondent relied upon Allied Signal Inc., supra at 151 et seq. and other authorities and argued that the evidence, being essentially that outside vendors provided photocopies at $0.11 per page for a total of $12,876.73 and that the solicitor of record provided in-house photocopies at $0.25 per page for a total of $8,214.48, fails to meet the threshold for proof of reasonable necessity. The rate of $0.25 per page is arbitrary and there is no evidence of how much it actually cost the solicitor of record to produce the photocopies. The Respondent noted that the supporting affidavit addressed only 12 of 22 invoices from outside vendors and argued variously for the remainder that details in the evidence disclose inconsistencies as a function of purpose, relevance, timing or numbers of photocopies. The proof is insufficient for numbers of copies claimed for items such as exhibit books, transcripts, monographs, application records etc.

[31] The Respondent argued that the $8,214.84 claimed for in-house photocopies included obvious examples of duplication of the work of the outside vendors, ie. motion records, authorities, transcripts, evidence etc. The use by the Applicants' solicitor of record of Torys LLP as counsel, an inappropriate luxury in party and party costs, may also have contributed to excessive photocopy charges. The Respondent argued generally that the Applicants have failed to meet the threshold in jurisprudence such as Byers Transport Ltd. v. Kosanovich F.C.J. 760 (T.O.) for proof of relevance and reasonable necessity of litigation costs and urged that nothing be allowed for photocopies. The Respondent argued alternatively for a reduced amount of $5,291.99 as a function of its item by item analysis of inappropriate instances of photocopy charges, ie. client copies, copies for junior counsel etc.

The Applicants' Position

[32] The Applicants relied on Rothmans, Benson & Hedges Inc., supra and argued that the invoices produced in the evidence explain the purpose and breakdown of the photocopy costs. The disbursement records from the solicitor of record list all reasonable and necessary photocopies billed to and paid by the clients. The Applicants argued that the Respondent's proposed reduction in the order of about 75% is a function of inaccurate information and inappropriate submissions as follows.

[33] The Respondent's proposition failed to recognize that materials were required for two court files thereby doubling the required number of copies. The Applicants' solicitor of record had to take individual instructions from two clients: one from Canada and one from the United States. As well, separate filings were required as a function of the Respondent having proceeded by pursuing an individual Notice of Compliance for each of the 200 mg and 400 mg dosages. The Applicants noted that the body of the affidavit supporting the bill of costs specifically mentions 15, not 12 as asserted by the Respondent, of the 22 invoices from outside vendors and argued that there are reasonable explanations for the concerns raised by the Respondent relative to invoices from outside vendors. For example, issues of timing of charges could be resolved by noting the intervals between the filing of motions and their actual dates of hearing. Issues of numbers of copies of given documents could be resolved by noting the requirement to address two court files and the various individuals entitled to receive copies, ie. opposing counsel, senior and junior counsel of record, the clients, Torys LLP etc.

[34] Relative to in-house photocopies, the Applicants conceded that they bear the onus to establish that the associated costs are reasonable and necessary, but relied upon Allied Signal Inc., supra to argue that irrefutable evidence is not required. The Applicants argued that the computer program used by its solicitor of record to track various categories of disbursements, such as photocopies, ensures that a complete accounting of costs is achieved, as here. Further, the narrative portion of the supporting affidavit resolves issues of excessiveness. Paragraph 18 thereof, which indicates that only some invoices from outside vendors were produced and marked as exhibit H, coupled with entries from the client ledger marked as exhibit J, which included all categories of disbursements, such as "20/10/1999 00129 Photocopies done outside office * 3.10 Y" undercut the Respondent's proposition concerning excessive photocopies. That is, exhibit J contains all of exhibit H, plus entries for each instance of in-house photocopying, thereby confirming that each instance of a photocopying claim represented an individual task not unnecessarily replicating other work. The Applicants asserted that it is not possible to prove absolutely every item of costs. The Applicants noted that hearings in each court file may have occurred on the same day, but separate filings in each were necessary. The evidence accounts for such occurrences.

Assessment

[35] I continue to have difficulties with the necessity for client copies, at least in terms of whether an unsuccessful litigant should bear the costs thereof. The entry cited above for 20/10/1999 is typical of those in client ledgers underlying bills of costs in general, ie. identification of what task was performed, but without details to assist in making an objective evaluation of reasonable necessity. There appear to be several hundred such entries in the client ledger for this matter. I have consistently held that a result of nil dollars on assessment is absurd given that real expenditures are needed to advance the events of litigation. I agree, as I have in the past with experienced practitioners, that the cost of absolute proof of small charges, even if totalling as here to a considerable amount, would exceed the actual amount of the disbursements themselves. However, the less that evidence is available, the more that the assessing party is bound up in the assessment officer's discretion, the exercise of which should be conservative with a view to a sense of austerity. I rely on Re Eastwood (deceased), supra and my approach in Carlile, supra and in Canadian Union of Public Employees, Local 4004 v. Air Canada [1997] F.C.J. No. 464 (A.O.) to resolve these issues. I allow a reduced amount of $16,000.00 for photocopies.

[36] The Applicants requested, as a function of the Court's award of costs at the top end of Column IV in T-1825-99, 9 units and 7 units respectively under items 5 or 15 for preparation for the assessment of costs and under item 26 for the hearing of the assessment, for a total of $1,770.00 + GST. I have consistently held that item 26 is a global amount encompassing both preparation and appearance. I allow $770.00 + GST. The Applicants' bill of costs for T-1825-99 and T-1970-99, presented at $111,462.12, is assessed and allowed at $97,120.55.

(Sgd.) "Charles E. Stinson"

Assessment Officer

Vancouver, B.C.

January 15, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-1825-99

STYLE OF CAUSE: PROCTER & GAMBLE PHARMACEUTICALS

CANADA, INC. and THE PROCTER & GAMBLE COMPANY

- and -

THE MINISTER OF HEALTH and GENPHARM INC.

PLACE OF HEARING: Toronto, ON

DATE OF HEARING: August 5, 2003

REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON

DATED: January 15, 2004

APPEARANCES:

Angela M. Furlanetto for Applicants

Kamleh J. Nicola for Respondent Genpharm Inc.

SOLICITORS OF RECORD:

Dimock Stratton Clarizio LLP for Applicants

Toronto, ON

Sim, Hughes, Ashton & McKay LLP for Respondent Genpharm Inc.

Toronto, ON

You are here

Procter & Gamble Inc. v. Canada (Minister of Health), 2004 FC 61

Citations2004 FC 61

Case tabs

Citations
2004 FC 61