Date: 20110503
Docket: T-1565-08
Citation: 2011 FC 509
Ottawa, Ontario, May 3, 2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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ELI LILLY CANADA INC.
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Applicant
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and
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APOTEX INC.
THE MINISTER OF HEALTH
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Respondents
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and
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ELI LILLY AND COMPANY
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Respondent/Patentee
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SUPPLEMENTARY REASONS FOR
JUDGMENT AND JUDGMENT
[1]
These
are my supplementary reasons concerning costs in this proceeding.
[2]
Eli
Lilly Canada Inc. (Lilly) has presented a Bill of Costs in the amount of
$232,751.56 which includes disbursements of $135,381.56. Of the claimed
disbursements, slightly more than $80,000.00 relates to expert fees charged by
Dr. McGough and by Dr. Barkley. Lilly has calculated its indemnity entitlement
at the high end of Tariff Column IV with a further premium of 15% to reflect what
it describes as Apotex Inc.’s (Apotex) unjustified allegations of fraud and bad
faith. In total Lilly is seeking a lump sum of $247,357.06.
[3]
Apotex
contends that, having regard to my decision in Novopharm Limited v Eli Lilly
and Company, 2010 FC 1154, which rendered this proceeding moot, no award of
costs should be made. In the alternative, Apotex has presented a Revised Bill
of Costs suggesting that costs at the low end of Tariff Column III would be
more appropriate. Among other things, Apotex takes issue with Lilly’s claims
to multiple counsel fees, to Dr. McGough’s fees for four days in connection
with a one-day examination, to several travel related disbursements, and to the
15% premium claimed by Lilly for unwarranted and unproven allegations. In the
result, the Bill of Costs proposed by Apotex comes to $147,071.84, which
includes disbursements of $120,395.64.
[4]
Having
considered the parties’ submissions on costs I agree with Lilly that an award
of costs at the upper end of Column IV is justified for essentially the same reasons
I gave in Novopharm, above. I do not agree with Apotex that the award
should be reduced because the application was dismissed for mootness. The case
was fully presented on the merits and, but for my intervening decision in Novopharm,
Lilly would have been successful. I also do not agree that the case was
rendered any less complex by Lilly’s involvement in the Novopharm proceeding.
In these particular circumstances, though, I am not prepared to award a premium
to Lilly in connection with Apotex’s unsubstantiated allegations of
misconduct.
[5]
I
also agree with Apotex that, having regard to the nature of the proceeding,
some of Lilly’s claims to multiple counsel fees are excessive.
[6]
On
the other hand, I can see nothing inappropriate about the amounts charged by
Lilly’s experts. Dr. McGough was required to travel from California to Chicago and back again to
attend his examination. A further day of preparation with counsel is not, in my
thinking, unreasonable.
[7]
This
is a case where a lump sum is appropriate and I will award Lilly the sum of
$215,000.00 inclusive of disbursements, GST and HST.
[8]
I
would add that Mr. Brodkin’s affidavit of December 14, 2010 is clearly
irregular in the sense that it is argumentative and improperly exceeds the page
limit imposed in my Order of September 14, 2010. I have therefore not
considered that evidence.
JUDGMENT
THIS COURT’S
JUDGMENT is that Apotex shall pay lump sum costs to Lilly
in the sum of $215,000.00 inclusive of disbursements, GST and HST.
"R.L.
Barnes"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1565-08
STYLE OF CAUSE: ELI
LILLY CANADA INC.
v
APOTEX
INC. AND THE MINISTER OF HEALTH
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: May 3 to 5 and
May
10
SUPPLEMENTARY REASONS
FOR JUDGMENT AND
JUDGMENT: Mr.
Justice Barnes
DATED: May 3, 2011
APPEARANCES:
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Patrick Smith
Jane Clark
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FOR THE APPLICANT
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Andrew Brodkin
Dino Clarizio
Miles Hastie
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FOR THE RESPONDENTS
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SOLICITORS OF RECORD:
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Gowling Lafleur Henderson LLP
Barristers and Solicitors
Ottawa, ON
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FOR THE APPLICANT
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Goodmans LLP
Barristers and Solicitors
Toronto, ON
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FOR THE RESPONDENTS
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