Date: 20090922
Dockets: T-3197-90
T-2624-91
T-2983-93
Citation: 2009 FC 949
Toronto, Ontario,
September 22, 2009
PRESENT: The Honourable Mr. Justice Hughes
Docket: T-3197-90
BETWEEN:
APOTEX INC. AND NOVOPHARM LTD.
Plaintiffs
and
THE WELLCOME FOUNDATION
LIMITED
Defendant
Docket: T-2624-91
AND
BETWEEN:
THE WELLCOME FOUNDATION LIMITED and GLAXO
WELLCOME INC.
Plaintiffs
and
INTERPHARM INC. and APOTEX INC. and ALLEN
BARRY SHECHTMAN
Defendants
Docket: T-2983-93
AND
BETWEEN:
THE WELLCOME FOUNDATION LIMITED and GLAXO
WELLCOME INC.
Plaintiffs
and
NOVOPHARM LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1]
These
reasons deal with an appeal from a decision of Prothonotary Lafrenière dated
February 3, 2009, cited as 2009 FC 117 in which he granted leave to Wellcome
Foundation Limited and Glaxo Wellcome Inc. (collectively GSK) to file a Further
Fresh as Amended Statement of Issues in these three proceedings which have been
consolidated and are to be heard together. Each of Apotex, Inc. and Novopharm Ltd.
have appealed from the decision. For the reasons that follow I find that the
appeal is dismissed except as to an amendment to the Order as to costs.
[2]
The
Prothonotary has in his reasons set out the background in these actions and the
motion to amend particularly at paragraphs 4 to 17 of his reasons. In brief
these actions were began in 1991 through 1993 in which it was alleged by GSK
that Canadian Patent 1,238,277 (‘277 Patent) had been infringed by Apotex and
Novopharm, which parties, in turn challenged the validity of that patent. There
was an Order on consent for bifurcation as to damages or profits. The matter
wound its way through the Courts and, ultimately, in 2002, the Supreme Court of
Canada held that certain claims of the patent were valid and infringed.
[3]
A
reference as to damages followed initiated by a pleading entitled “Statement of
Issues” by GSK in 2003. An Amendment to the Statement of Issues was made, on
consent, in 2005. There have been extensive discoveries. A trial date in March
or May 2011, depending on the outcome of a proceeding, has been set.
[4]
In
December 2007, GSK filed a motion to further amend the Statement of Issues.
That motion was supported by an affidavit of a law clerk, O’Connor, reviewing background
information and documents, which affidavit is uncontroversial, and by an
affidavit of Peter I. Dolton, Vice President of the UK Pharma Division of
GlaxoSmithKline UK. That affidavit is
controversial but brief, the important paragraphs are 4 through 7 which state:
a.
Since
the preparation of the Damages Schedules, GSK Canada has continued to investigate its damages
claims, and in particular its determination of what pricing would have occurred
“but for” the actions of, and infringement by, the Defendants.
b.
Based
on these investigations, GSK Canada is of the view that the evidence supports a
revised pricing as set out in proposed Further Fresh As Amended Statement of
Issues.
c.
IN
particular the Corporate Overview (GSK Production No. 2445), a Division
Overview (GSK Production No. 2446), and RETROVIR® Marketing Plan (GSK
Production No. 2447) and a RETROVIR® Sales Forecast Model (GSK Production No.
2402), provide information which impact on the “but for” pricing which would
have occurred.
d.
In
addition, shortly prior to the filing of the Damages Schedules certain pricing
changes occurred which were not captured in the Damages Schedules, but which
are relevant to GSK Canada’s claims.
[5]
Dolton was extensively
cross-examined by counsel for each of Apotex and Novopharm.
[6]
Novopharm
filed an affidavit from Rosa Pedretti, a legal assistant to one of its outside
counsel, providing non-controversial information and documents. Apotex filed an
affidavit from a law clerk, Nicole Roth providing non-controversial information
and documents and an affidavit of Stephen R. Cole, an outside business valuator,
upon which there was extensive cross-examination by GSK’s counsel.
[7]
Some of
the amendments sought to be made by GSK were not contested by Apotex/Novopharm.
The amendments sought which are in controversy relate to the quantum of damages
claimed and supporting rationale. Originally GSK claimed damages totalling
$210,000,000 as set out in paragraph 5 of the Statement of Issues as follows:
5. The Plaintiffs claim damages from the Defendants
on a joint and several basis in the total amount of $210,000,000. The
Plaintiffs’ damages claim, which defines the issues in this reference, is
broken down as follows:
(a) Losses on sales of
zidovudine due to customer rebates (RETROVIR®, RETROVIR® 300, COMBIVIR®,
TRIZIVIR®) $22,000,000
(b) Lost revenue on
sales of zidovudine at a reduced price (RETROVIR®, RETROVIR® 300, COMBIVIR®,
TRIZIVIR®) $34,000,000
(c) Lost revenue on
sales of lamivudine at a reduced price (3TC®, HEPTOVIR®, COMBIVIR®, TRIZIVIR®)
$58,000,000
(d) Lost profits on the
Defendants’ sales of infringing products $30,000,000
(e) Lost opportunity to
re-invest profits/revenues in the usual and ordinary course of business (items
a-d above) $66,000,000
(f) Pre-judgment and
post-judgment interest in an amount to be fixed by this Honourable Court
(g) Costs in an amount
to be fixed by this Honourable Court.
[8]
By
amendments made on consent in 2005, the quantum of damages claimed by GSK rose
from $220 to $300 million with the itemized figures revised as follows:
(a) Losses on sales of
zidovudine due to customer rebates (RETROVIR®, RETROVIR® 300, COMBIVIR®,
TRIZIVIR®) [Schedule 2] $17,608,599
(b) Lost revenue on
sales of zidovudine at a reduced price (RETROVIR®, RETROVIR® 300, COMBIVIR®,
TRIZIVIR®) [Schedule 3] $38,959,636
(c) Lost revenue on
sales of lamivudine at a reduced price (3TC®, HEPTOVIR®, COMBIVIR®, TRIZIVIR®)
[Schedule 3] $70,707,571
(d) Lost profits on the
Defendants’ sales of infringing products [Schedule 4] $26,334,068
(e) Lost opportunity to
re-invest profits/revenues in the usual and ordinary course of business (items
a-d above) [Schedule 5] $144,610,456
(f) Pre-judgment and
post-judgment interest in an amount to be fixed by this Honourable Court
(g) Costs in an amount to be fixed
by this Honourable Court.
[9]
The further
amendments now sought would raise to total amount of damages claims by GSK to
just under $675 million as set out in the proposed revised paragraph 5 set out
below with further amendments to support these numbers set out in other
paragraphs and appendixes to the proposed amended Statement of Issues:
(a) Losses on sales of
zidovudine due to customer rebates (RETROVIR®, RETROVIR® 300, COMBIVIR®,
TRIZIVIR®) [Schedule 2] $19,688,561
(b) Lost revenue on
sales of zidovudine at a reduced price (RETROVIR®, RETROVIR® 300, COMBIVIR®,
TRIZIVIR®) [Schedule 3] $92,478,711
(c) Lost revenue on
sales of lamivudine at a reduced price (3TC®, HEPTOVIR®, COMBIVIR®, TRIZIVIR®)
[Schedule 3] $156,576,233
(d) Lost profits on the
Defendants’ sales of infringing products [Schedule 4] $31,871,131
(e) Lost opportunity to
re-invest profits/revenues in the usual and ordinary course of business (items
a-d above) [Schedule 5] $373,743,620
(f) Pre-judgment and
post-judgment interest in an amount to be fixed by this Honourable Court
(g)
Costs
in an amount to be fixed by this Honourable Court.
[10]
Prothonotary
Lafrenière heard arguments and, on February 3, 2009, made the Order now under
appeal, with Reasons, allowing the amendments with certain provisions as to
costs. He concluded at paragraphs 52 to 55 of his Reasons, 2009 FC 117:
[52] Pleadings should reflect the real
issues between the parties so that a matter can be decided on its merits and
with all issues properly before the Court. In Canderel Ltd. v. Canada, [1994] 1
F.C. 3 (C.A.), Décary, J.A. stated the basic premise as
follows
. . . while it is impossible to enumerate all
the factors that a judge must take into consideration in determining whether it
is just, in a given case, to authorize an amendment, the general rule is that
an amendment should be allowed at any stage of an action for the purpose of
determining the real questions in controversy between the parties, provided,
notably, that the allowance would not result in an injustice to the other party
not capable of being compensated by an award of costs and that it would serve
the interests of justice.
[53] I find that there will
be no prejudice to the Respondents as a consequence of these amendments as they
have been apprised of them before completion of the first round of examinations
for discovery and further examinations for discovery are contemplated. In
contrast, GSK would be prejudiced if these amendments are not allowed, since
GSK will be prevented from asserting the proper quantification of damages which
it would otherwise be entitled to assert. The amendments will also assist the
referee in deciding the matters in controversy.
[54] The Respondents
will be put to additional expense in defending the claim for damages, chiefly
through duplication of effort in preparation for examination for discovery. The
Respondents should accordingly be compensated for all reasonable costs incurred
in re-examining GSK’s representative for discovery with respect to the 2008
Price Amendments, such costs to be assessed at the middle of Column IV of
Tariff B.
[55] As a general rule, a
party seeking an amendment should bear the costs, particularly when the
amendments are required due to inadvertence. However, the Respondents resisted
this motion for leave to amend on the merits, not just as to terms. Since GSK
was successful in obtaining the relief it requested, I conclude that there
should be no order of costs of this motion.
I. ISSUES
[11]
Apotex/Nophovarm
raise the following issues on this appeal:
1.
What is
the standard of review of the Prothonotary’s Order in the circumstances of this
particular case?
2.
Did the
Prothonotary misapprehend the evidence?
3.
Did GSK
provide an adequate explanation as to the need for amendment?
4.
Do the
amendments constitute a withdrawal of an admission?
5.
Would
Apotex/Novopharm suffer prejudice if the amendments were to be allowed?
6.
Was the
costs award inadequate?
II. GENERAL CONSIDERATIONS AS TO AMENDMENTS
[12]
The
general principles respecting amendments to pleadings have been stated many
times in this and other common law Courts, an amendment should be permitted so
as to put the real issues in controversy before the Court unless the opposing
party will suffer prejudice not compensable in costs, and that the interests of
justice will be served.
[13]
There are
many authorities for this proposition, I cite Canderel Ltd. v. Canada,
[1994] 1 F.C. 3 (CA) at paragraph 9 as a typical example:
[9] With respect to amendments, it may be stated as a result of the decisions
of this Court in North-west Airporter Bus Service Ltd. v. The Queen and
Minister of Transport; The Queen v. Special Risks Holdings Inc.; Meyer v.
Canada; Glisic v. Canada and Francoeur v. Canada and of the decision of the
House of Lords in Ketteman v. Hansel Properties Ltd which was referred to in
Francoeur, that while it is impossible to enumerate all the factors that a
judge must take into consideration in determining whether it is just, in a
given case, to authorize an amendment, the general rule is that an amendment
should be allowed at any stage of an action for the purpose of determining
the real questions in controversy between the parties, provided, notably, that
the allowance would not result in an injustice to the other party not capable
of being compensated by an award of costs and that it would serve the interests
of justice.
[14]
Amendments
that increase the quantum of an award sought by a plaintiff have been allowed,
even at a late stage in the proceedings, in cases such as Richardson International
Ltd. v. Mys Chikhacheva (The), [2002] 4 F.C. 80. There the Trial Judge
allowed such an amendment to be made just prior to closing arguments at trial.
The Federal Court of Appeal did not set aside such amendments. Malone J.A. for
the Court wrote at paragraphs 49 to 51:
[49] In
this case, Richardson sought to amend its maritime lien claim at the last
possible stage of the action, that is, just prior to its closing argument. It
argued that it was unaware that port expenses (the Korwell invoices) could be
claimed as necessaries until its own American legal expert explained that such
expenses were, in fact, properly the basis of a maritime lien. The Korwell
invoices had been introduced in Court and proven at trial as an exhibit, and
Bering's counsel cross-examined on the documents without protest. Dubé J.
allowed the amendment under subsection 75(1) as Bering was unable to
demonstrate prejudice.
[50] Bering now argues that the Trial Judge erred in allowing Richardson to
amend its claim to include the Korwell invoices at such a late stage in the
trial. Bering alleges that it was unaware that the invoices were included in
Richardson's claim until closing argument and further asserts that the amounts
referred to in the invoices are not reflective of the heads of damage
originally claimed in the statement of claim. As such, the amendment cannot be
regarded as merely numerical, and, at the argument stage amounts to trial
[page107] by ambush.
[51] It is true that the application for leave to amend came at
an extremely late stage in the trial, and it is unusual that Richardson would
have learned of the Korwell invoices' relevance from its own expert witness.
However, the key element in the Canderel test is, in my view, "the
interests of justice." I note that counsel for Bering did not apply for an
adjournment or to reopen Bering's case when the amendment was sought. Ms.
Richardson was present and could have been recalled for further
cross-examination, but that was not done. Accordingly, in light of Bering's
failure to demonstrate any prejudice, I fail to see how Dubé J. erred in
granting the amendment.
[15]
A similar
situation was considered and such an amendment allowed by the Ontario Court of
Appeal in Haikola v. Arsenau (1996), 27 O.R. (3d) 576.
[16]
With
respect to the interests of justice and timelyness of a motion to amend, these
issues were also canvassed in Canderel supra. In brief the nearer to the
end of a matter that an amendment is sought the more cautious a Court ought to be
in granting the amendment. As well, there must be a legitimate expectation
that there will be an end to the litigation such that a seemingly endless
series of amendments should be discouraged. Décary J.A. for the Court wrote at
paragraphs 12 and 13:
[12] As regards interests of justice, it
may be said that the courts and the parties have a legitimate expectation in
the litigation coming to an end and delays and consequent strain
and anxiety imposed on all concerned by a late amendment raising a new issue
may well be seen as frustrating the course of justice. The principles were in
our view best summarized by Lord Griffiths, speaking for the majority, in
Ketteman v. Hansel Properties Ltd:
This was
not a case in which an application had been made to amend during the final
speeches and the court was not considering the special nature of a limitation
defence. Furthermore, whatever may have been the rule of conduct a hundred
years ago, today it is not the practice invariably to allow a defence which is
wholly different from that pleaded to be raised by amendment at the end of the
trial even on terms that an adjournment is granted and that the defendant pays
all the costs thrown away. There is a clear difference between allowing
amendments to clarify the issues in dispute and those that permit a distinct
defence to be raised for the first time.
Whether an
amendment should be granted is a matter for the discretion of the
trial judge and he should be guided in the exercise of the discretion by his
assessment of where justice lies. Many and diverse factors will bear on the
exercise of this discretion. I do not think it possible to enumerate them all
or wise to attempt to do so. But justice cannot always be measured in terms of
money and in my view a judge is entitled to weigh in the balance the strain the
litigation imposes on litigants, particularly if they are personal litigants
rather than business corporations, the anxieties occasioned by facing
new issues, the raising of false hopes, and the legitimate expectation that the
trial will determine the issues one way or the other. Furthermore, to allow an
amendment before a trial begins is quite different from allowing it at the end
of the trial to give an apparently unsuccessful defendant an opportunity to
renew the fight on an entirely different defence.
Another
factor that a judge must weigh in the balance is the pressure on the
courts caused by the great increase in litigation and the consequent necessity
that, in the interests of the whole community, legal business should be
conducted efficiently. We can no longer afford to show the same indulgence
towards the negligent conduct of litigation as was perhaps possible in a more
leisured age. There will be cases in which justice will be better served by
allowing the consequences of the negligence of the lawyers to fall on their own
heads rather than by allowing an amendment at a very late stage of the
proceedings.
and by Bowman T.C.J. in Continental Bank
Leasing Corporation et al. v. The Queen:
. . . I prefer to put the
matter on a broader basis: whether it is more consonant with the interests of
justice that the withdrawal or amendment be permitted or that it be denied. The
tests mentioned in cases in other courts are of course helpful but other
factors should also be emphasized, including the timeliness of the
motion to amend or withdraw, the extent to which the proposed amendments would
delay the expeditious trial of the matter, the extent to which a position taken
originally by one party has led another party to follow a course of action in
the litigation which it would be difficult or impossible to alter and whether
the amendments sought will facilitate the court's consideration of the true
substance of the dispute on its merits. No single factor predominates nor is
its presence or absence necessarily determinative. All must be assigned their
proper weight in the context of the particular case. Ultimately it boils down
to a consideration of simple fairness, common sense and the interest that the
courts have that justice be done.
[13] While
it is true that leave to amend may be sought at any stage of a trial, it is
safe to say that the nearer the end of the trial a motion to amend is made, the
more difficult it will be for the applicant to get through both the hurdles of
injustice to the other party and interests of justice. We note that in all the
tax cases referred to by counsel for the appellant, the motion to amend had
been made before trial or was made at trial but was to be expected by the
opposing counsel during trial.
[17]
Regard
should be given to the decision of the Federal Court of Appeal in Merck
& Co. v. Apotex Inc., [2004] 2 F.C.R. 459 where the Court dealt not
only with the standard of review of a Prothonotary’s decision which shall be discussssed
shortly .
[18]
Décary
J.A., for the majority in Merck supra in dealing with amendments sought
in that case by Apotex, said at paragraphs 32 and 33 that while generalized
statements can be made, each amendment sought should be dealt with on a case by
case basis:
[32] I fully agree with the proposition set
out in paragraph 15, in Andersen, that:
We must ensure that the procedure to withdraw
admissions is not made so complex and so stringent that virtually no admission
will be made by the defendants.
But I do
not read these words to say that the procedure should be made so simple and so
relaxed that virtually any withdrawal of admissions will be allowed. There is a
burden to be met by the amending party and, while the factors to be considered
are essentially the same for all amendments, the burden should be heavier when
the amendments at issue purport to withdraw substantial admissions and would
result in a radical change in the nature of the questions in controversy.
[33] The
nature, timing and circumstances vary from one amendment to the other and from
one type of amendment to the other, and one must be careful not to generalize
judicial pronouncements made in a given context. The prothonotary or judge
seized with the motion to amend has the duty to consider all
relevant factors. There is, for example, as noted by Lord Griffiths in Ketteman,
at page 62, "a clear difference between allowing amendments to clarify the
issues in dispute and those that permit a distinct defence to be raised for the
first time". There is also a clear difference between allowing amendments
at trial and allowing amendments before trial (see Glisic v. Canada, [1988] 1 F.C. 731 (C.A.), at page
740; Ketteman, supra). There is also a clear difference, I suggest, between
allowing amendments that amount to the withdrawal of an admission and
amendments that do not, and a clear difference between allowing amendments that
amount to withdrawal of a substantial admission the result of which is to alter
the cause of action and one that relates to a mere admission of fact.
[19]
In
summary:
·
In general
an amendment should be granted provided that the opposite party is not
prejudiced in a manner that cannot be compensated for in costs.
·
Each
amendment sought should be dealt with on a case by case basis.
·
Amendments
revising the quantum of damages sought upwardly are allowable, even at a late
date.
·
Endless
amendments are to be discouraged.
·
The later
the amendment is sought, the more cautious a Court ought to be in granting it.
III. ISSUE #1
[20]
What is
the standard of review of the Prothonotary’s Order in the circumstances of this
case?
[21]
The
standard of review to be applied by the Court in an appeal from a decision of a
Prothonoary has been well established in this Court and the Court of Appeal. It
is the standard as set out by the Federal Court of Appeal in Merck & Co.
v. Apotex Inc., supra where Décary J.A. for the majority wrote at
paragraph 19:
[19] To avoid the confusion
which we have seen from time to time arising from the wording used by MacGuigan
J.A., I think it is appropriate to slightly reformulate the test for the
standard of review. I will use the occasion to reverse the sequence of the
propositions as originally set out, for the practical reason that a judge
should logically determine first whether the questions are vital to the final issue:
it is only when they are not that the judge effectively needs to engage in the
process of determining whether the orders are clearly wrong. The test would now
read: "Discretionary orders of prothonotaries ought not be disturbed on
appeal to a judge unless: (a) the questions raised in the motion are vital to
the final issue of the case, or (b) the orders are clearly wrong, in the sense
that the exercise of discretion by the prothonotary was based upon a wrong
principle or upon a misapprehension of the facts."
[22]
Apotex/Novopharm argue on the present appeal
that I should approach the matter de novo since an amendment of a
request for damages which only for $675 million when earlier $300 million was
sought is so substantial as to go directly to the heart of the matter. GSK
replies in stating that while the numbers are greater, the basis for those
numbers remains the same although the factual information going to quantum such
as price levels increase, it is the same methodology and circumstances for
calculation.
[23]
I am
satisfied that, in the present situation, GSK is not seeking amendments that
would add a substantial new issue nor dispose of an issue. The effect of the
amendments would be to increase the value of the claim substantially, but not
the claim itself or the basis for the claim.
[24]
The main
consideration that Prothonotary Lafrenière had to deal with is whether there
was sufficient basis for the amendment made out by GSK or sufficient basis for
refusing it made out by Apotex or whether Apotex/Novopharm had
demonstrated irreparable harm or other basis in the interests of justice to
refuse the amendment. In my opinion I should not approach the matter de novo
rather I should examine the matter to determine if an error of law was made or
whether there was a material misapprehension of the relevant facts. I should
add however that even if I were to approach the matter de novo my conclusions
on the evidence and the law would be the same as those of the Prothonotary.
IV.
ISSUE #2
[25]
Did the
Prothonotary misapprehend the evidence?
[26]
The
evidence offered by GSK for the amendment is, I agree, scanty. It amounts to
little more than one of the instructing minds on the GSK litigation team saying
that they have thought about the matter more and that, based on some the documents
that came to light, they believe that a larger claim is in order. However, that
person has been extensively cross-examined, Apotex has put in evidence of its own
expert giving the view that the documents do not substantiate such a claim. It
is the totality of this evidence that is now before me.
[27]
I am
satisfied that the Prothonotary turned his mind to this evidence and considered
the relevant materials. There are two points to make. First, GSK does not have
to prove its case conclusively or even on the balance of the evidence at this
stage, only that it has an arguable case to make. Second,there is ample time
for further discovery and for Apotex/Novopharm to prepare its rebuttal. No prejudice
not compensable in costs has been shown. The Prothonotary was right in his
determination at paragraphs 41 and 42 of his Reasons that these issues raised
by the amendments are best left for consideration at trial.
V.
ISSUE #3
[28]
Did GSK
provide an adequate explanation as to the need for amendment?
[29]
This issue
is closely related to Issue #2 above and the result is the same.
VI. ISSUE #4
[30]
Do the
amendments constitute a withdrawal of an admission?
[31]
Apotex/Novopharm
made two arguments in this respect. One is to say that by stipulating an amount
claimed in the Statement of Issues GSK has, by implication, stated that such an
amount, in this case $300 million as set out in the 2005 amendments, is the
maximum recovery that it can seek. I do not agree with such an argument. The
pleading is a statement of position of GSK, and as I have already set out, the
Courts have allowed such statements to be revised. The situation is not similar
to Merck supra where Apotex was seeking to raise an entirely new defence
of non-infringement at a late stage in the proceedings. In Merck, Apotex
had stated that it had only one basis for asserting non-infringement, it was
precluded from raising a second quite different basis late in the proceedings.
[32]
The second
argument raised is that one of the principal factors used in calculating the
claim was the proposed selling price of the drug. Apotex/Novopharm say that the
GSK representative on discovery said that such a price was $1.95. The new claim
is made on the basis that such a price would have to be at or about $2.20. A
review of other portions of the discovery transcript indicates that no binding
admission as to the $1.95 price level was made by GSK and that Apotex/Novopharm
was well aware that a level approaching $2.20 may be asserted.
VII. ISSUE #5
[33]
Would
Apotex/Novopharm suffer prejudice if the amendments were to be allowed?
[34]
This issue
is also closely related to if not identical to Issues 2 and 3 above. As to
irreparable prejudice the onus rests on Apotex/Novopharm to show prejudice to them not
compensable in costs. Those parties have put no evidence forward to show that
they would be prejudiced in any way not compensable in costs. The evidence of
the Apotex expert Cole is directed to an attempt to show that GSK has no
reasonable foundation for the increased damages sought, it does not show irreparable
prejudice to Apotex
or Novopharm. There is no evidence by any
representative of either of those parties as to what if any irreparable harm
will be suffered by them.
VIII.
ISSUE #6
[35]
Was the
costs award inadequate?
[36]
On this
issue I differ with the Prothonotary only in the fixing of costs at the middle
of Column IV or at any level at present. I agree that any costs respecting
additional discovery and preparation should be paid by GSK regardless as to the
outcome of the case. Given, however, that the strength or weakness of the basis
for the amendments cannot be determined at this time, it would be proper to
leave the quantification of the costs, whether it be full indemnification,
Column IV, or otherwise, to the Trial Judge.
IX. CONCLUSION
[37]
The appeal
is dismissed except that paragraph 2 of the Prothonotary’s Order is amended so
as to leave the quantum of the assessment of costs to the Trial Judge.
[38]
Given the
results of this appeal GSK shall have its costs in the cause.
ORDER
THIS COURT ORDERS that:
1. The Order of Prothonotary
Lafrenière dated February 3, 2009 is varied only in that the words “to be
assessed at the middle of Column IV of Tariff B” are replaced with the words
“to be assessed at a level fixed by the Trial Judge following the trial.”
2. The appeal is otherwise
dismissed.
3. The Wellcome Foundation
Limited and Glaxo Wellcome Inc. are awarded costs of this appeal in
the cause.
“Roger
T. Hughes”
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