Date: 20100216
Docket: T-894-07
Citation: 2010
FC 156
Toronto, Ontario, February 16, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
NOVOPHARM
LIMITED
Applicant
and
MINISTER OF HEALTH
and PFIZER CANADA INC.
Respondents
ORDER AS TO COSTS AND REASONS
FOR ORDER
[1]
These
proceedings deal with an application by Novopharm Limited under sections 18 and
18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 for various
declarations respecting the conduct of the officials of the Respondent,
Minister of Health, in administrating certain provisions of the Patented
Medicines (Notice of Compliance) Regulations, SOR/93-133 as amended (NOC
Regulations). In brief, the circumstances arise out of Novopharm’s
endeavours to receive a Notice of Compliance from the Minister to distribute in
Canada a generic version of a Pfizer drug and
issues surrounding the listing by Pfizer under the NOC
Regulations of a certain patent, the '201 patent, during the pendency of
proceedings in this Court and the Federal Court of Appeal respecting other
listed patents pertaining to that drug.
[2]
The
present proceedings were instituted by Novopharm in 2007 as against the
Minister of Health only. By an Order of the Prothonotary, Pfizer was added as a
necessary party respondent. All three parties provided evidence by way of
affidavits and cross-examined on each other’s affidavits. The nature of the
relief sought by Novopharm changed during the course of the proceedings. Certain
claimed relief was struck out by the Prothonotary. Other amendments to the
claimed relief were voluntarily made by Novopharm. Ultimately, at the hearing,
Novopharm’s Counsel agreed that the relief claimed by Novopharm was that as set
out in the last substantive paragraph of its Memorandum of Argument.
[3]
These
proceedings were case managed. At least four case management teleconferences
were held during 2008 and 2009. The matter was set down for hearing several
months in advance of the date set for the hearing. The hearing took place in Toronto on January 25 and 26, 2010
following which I took the matter under reserve. Late in the afternoon of
Friday, January 29, 2010 Counsel for Novopharm contacted the Court Registry to
advise that Novopharm was going to file a Notice of Discontinuance subject to a
resolution as to costs with Pfizer and the Minister of Health. On Monday,
February 1, 2010 Novopharm did file a Notice of Discontinuance. Apparently, a
settlement as to costs has been reached with the Minister of Health. No such
settlement has been reached with Pfizer hence the necessity for this Order. In
making this Order I have considered the
whole of the record in these proceedings as well as the
letters from Counsel for each of Novopharm and Pfizer as to costs.
[4]
Rule 402
of the Federal Courts Rules permits a party against whom a Notice of
Discontinuance of an application has been filed, to be entitled to costs
forthwith. That Rule does not stipulate the level of such costs. Such level
falls to be determined by the Court under the provisions of Rule 400 including
Rule 400(3).
[5]
Parties
are always encouraged to resolve the issues that are in dispute before this
Court. Several opportunities are offered for resolution including case
management, as was the situation here, and Court assisted mediation. The
primary obligation, however, to assess the merits of a case and endeavour to
arrive at a resolution always falls upon the parties themselves and their
Counsel. In particular such is the case where the parties are, as they are
here, sophisticated and well accustomed to litigation, and their Counsel are
well versed in the subject matter at hand and the litigation process. The Court
can propose that the parties settle but the parties themselves must dispose of
the matter.
[6]
I am
satisfied, having reviewed the file thoroughly before the hearing began, and
heard Counsel for Novopharm during the hearing, that Novopharm was unsure of
the remedy that it was seeking, or why it was seeking such a remedy. I had a clear
impression that a good deal of last minute adjustments were being made by
Novopharm and its Counsel. I note Novopharm’s Counsel’s letter to the Court
dated February 10, 2010 in which it is stated:
… after oral submissions of all parties,
[Novopharm] was of the view that the precedent- setting issues… would be better
left for another case having a clear live controversy without any potential
justiciability complications…
[7]
I cannot
accept that Novopharm or its Counsel recognized the possible futility of its
case only after the conclusion of oral argument. There was ample opportunity as
the case developed, and after the evidence was finalized several months before
the hearing, to assess the strength of the case and the futility of any
judgment.
[8]
The Court,
in setting a matter down for hearing, provides to the Judge hearing the matter
time before the hearing to review the file. After the matter is heard, the
Judge is afforded time to write the reasons. In a matter such as this when a
matter is discontinued after the hearing, the time to review the file and the
hearing time as well as time spent preparing reasons is forever lost. Every
party is entitled to its day in Court, but it is not entitled to deprive other
persons seeking their own day in Court to the time that the Court could have
spent on their matter. Here a consideration by Novopharm and its Counsel as to
the merits of its case should have occurred well before the hearing, not after
the hearing was over. Regretfully, except to provide remarks such as this, the
Court has, at present, no means to afford a remedy to itself for the loss of
judicial resources better spent elsewhere.
[9]
The Rules,
however, do provide a remedy, by way of costs, to a party whose time has been
wasted and money and resources unnecessarily spent. Pfizer was a proper party to
these proceedings. I find nothing in the conduct of Pfizer in the proceedings
that would disentitle it to
costs or to a lesser remedy as was alluded to in Novopharm’s
Counsel’s correspondence with the Court. I have reviewed Pfizer’s proposed
bills including its representations that actual fees, excluding disbursements,
as charged to the client, Pfizer, were close to or even exceeded $100,000.00.
The constant theme in discussions between the bench, the bar, and the client
community, is that legal fees, in this case for representation for one of two
respondents in a two day hearing, including preparation of affidavits
cross-examination and written argument, is getting well beyond the means of
those other than the very affluent.
[10]
Having
reviewed Pfizer’s various proposed bills of costs and disbursements calculated
on a variety of different presumptions, I am satisfied that Pfizer’s claimed
disbursements in the sum of $29,854.60 are proper and allowable. I am satisfied
that, in the circumstances of this case, that Pfizer is entitled to one of the
alternatives proposed by it being fees at the Column IV level up to and including
cross-examinations, and at the high end of Column V the preparation and attendance
at the hearing. To these fees 5% GST should be added for making a total of
$33,572.18. The sum of the fees, GST and disbursements allowable therefore is
$63,426.78.
ORDER
FOR THE REASONS provided:
THIS COURT ORDERS that:
1.
Pfizer is
entitled to its costs and disbursements as against Novopharm in
these proceedings in the sum
of $63,426.78 payable forthwith, calculated as
follows:
a)
Said costs
are allowed in the sum of
$33,572.18 which sum includes
5%
GST;
b)
Said
disbursements are allowed in the sum of
$29,854.60.
2. No additional costs
are allowed in respect of the dispute as to costs.
“Roger
T. Hughes”
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