Docket: T-1310-09
Citation:
2014 FC 489
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BETWEEN:
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ABBVIE CORPORATION, ABBVIE
DEUTSCHLAND GMBH & CO. KG AND
ABBVIE BIOTECHNOLOGY LTD.
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Plaintiffs/
Defendants by
Counterclaim
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and
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JANSSEN INC.
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Defendant/
Plaintiffs by
Counterclaim
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PUBLIC REASONS FOR JUDGMENT
(Confidential Reasons for Judgment released May 22, 2014)
HUGHES J.
[1]
The trial of this action has been divided into
several parts: This is the second part, and deals with the matter of an
injunction. The first part of this trial dealt with the allegations of
infringement and invalidity of Canadian Letters Patent No. 2,365,281 (the'281
patent). On January 17, 2014, I rendered a decision, cited as 2014 FC 55,
wherein I determined that claims 143 and 222 of that patent were valid and have
been infringed by the Defendant Janssen Inc. by its promoting, offering for
sale, and selling in Canada its product known as STELARA. That decision is
currently under appeal to the Federal Court of Appeal (Docket: A-95-14).
[2]
By an Order of the Case Management Prothonotary
dated September 26, 2011, the issues in this action were separated; whereby,
the issues of infringement and invalidity of the '281 patent were divided out
from the remaining issues. The remaining issues were further divided by an
Order of the Case Management Prothonotary dated February 13, 2014; affirmed on
appeal (2014 FC 178), whereby the question of an injunction was to be
determined first and separately from the remaining issues as to damages or
profits. I have now heard the issues as to an injunction during the week of May
12, 2014. The remaining issues as to damages or profits are scheduled to be
heard in September 2015.
[3]
With respect to the issues as to an injunction,
which I am to determine at this time, I find that an injunction shall issue
subject to specific terms and conditions.
[4]
The following index to these Reasons, by
paragraph number, is provided:
I.
The Evidence
[5]
The evidence in the present portion of the
action took various forms. By an Order of the Case Management Prothonotary
dated February 13, 2014, all evidence in chief, both factual and expert, was to
be presented in the form of an affidavit, upon which there would be
cross-examination of the witnesses in person before me, if requested. A few
weeks prior to the commencement of the hearing before me, Janssen had brought a
motion in the Federal Court of Appeal to stay the trial before me. That motion
was denied by a decision of that Court dated May 1, 2014 (cited as 2014
FCA 112). In respect of that motion, certain affidavits were filed and
cross-examinations conducted. In some instances, the evidence in the record
before me comprised the affidavits filed with the Federal Court of Appeal, and
transcripts of the cross-examination. As a result, the following evidence was
placed in the record in the current phase of these proceedings; I have found
all the witnesses to be credible, the corporate witnesses were surprisingly
candid, the experts were very helpful with their opinions:
Exhibit P-1: Two
volumes of documents agreed upon between the parties
[6]
The Plaintiffs AbbVie provided the evidence of
the following persons as expert witnesses:
1.
Kabeer Baig of Mississauga, Ontario: His evidence was provided by way of an affidavit (Exhibit P-2), upon
which there was no cross-examination. His qualifications were not contested by
the Defendant:
Kabeer Baig is a licensed Ontario
pharmacist who has been involved in the pharmaceutical dispensing of biologic
response modifiers since 2001, both as an owner and operator of the largest
single pharmacy dispenser of biologics in Canada and as a consultant to
pharmacies who distributed biologics. AbbVie proposes that Mr. Baig be
qualified as an expert in the practice of front-line pharmacists across Canada and to express opinions set out in his affidavit.
2.
Dr. Charles Lynde
of Markham, Ontario: His evidence in chief was provided by way of two
affidavits (Exhibits P-15 and P-16). He was cross-examined in person before me.
His qualifications were not contested by the Defendants:
Dr. Charles Lynde is currently a
dermatologist practicing at the Lynde Centre for dermatology, a full service
dermatology clinic in Ontario. Dr. Lynde is an Associate Professor at the
University of Toronto, the Clinical Director of the Toronto Western Dermatology
Clinic at the University of Toronto and was a previous President and board
member of the Canadian Dermatology Association. AbbVie proposes that Dr. Lynde
be qualified as an expert in dermatology with specific expertise in the
treatment and management of psoriasis and the use, efficacy, and safety of
biologics in the treatment of psoriasis. AbbVie proposes that Dr. Lynde also be
qualified to provide opinions about the standard of practice of dermatologists
in Canada and the educational needs of dermatologists in Canada and to express opinions set out in his affidavits.
3.
Rosemary Bacovsky,
of Calgary, Alberta: Her evidence in chief was provided by way of two
affidavits (Exhibits P-30 and P-31). She was cross-examined in person before
me. Her qualifications were not contested by the Defendant:
Rosemary Bacovsky is a consultant
relating to drug plans and pharmaceutical policy. She was previously Director
of Pharmacy Services where she managed Alberta Health’s drug program. In that
role, she was responsible for making recommendations to Alberta’s Minister of
Health on whether to list a drug on the Alberta provincial formulary. AbbVie
proposes that Ms. Bacovsky be qualified as an expert in the practice and
procedures of both provincial and private drug plans. AbbVie proposes that Ms.
Bacovsky also be qualified about the application and amendment procedures for
drug listings in both public and private drug plans and to express the opinion
set out in her affidavits.
4.
Brenda Gryfe, of Markham, Ontario: Her evidence in chief was provided by way of an affidavit (Exhibit P-33).
She was cross-examined in person before me. Her qualifications were not
contested by the Defendant:
Brenda Gryfe is the Director of
Canadian Regulatory Affairs of OPTUMInsight where she prepares and reviews
regulatory drug submissions to ensure they are in compliance with applicable
guidelines and regulations. Ms. Gryfe has over 25 years of experience in the
pharmaceutical regulatory sector. AbbVie proposes that Ms. Gryfe be qualified
as a regulatory expert on the requirements imposed by Health Canada on pharmaceutical
companies, including as they relate to advertising and promotion. Ms. Gryfe
will be qualified to opine on the continuing regulatory requirements applicable
to a manufacturer of biologics and to express the opinions set out in her
affidavit.
[7]
The Plaintiffs also provided the evidence of the
following fact witnesses:
5.
Todd Manning, of Montreal Quebec: He is employed by an affiliate of the Plaintiffs. His responsibilities
include managing the sales and marketing of the Plaintiffs’ HUMIRA product in Canada. His evidence in chief was provided by way of an affidavit (Exhibit P-13). He was
cross-examined in person before me.
[8]
In addition, the Plaintiffs provided portions of
the examination for discovery of the Defendant Janssen, and related documents,
in a booklet that was deemed to be read into the record (Exhibit P-40).
[9]
The Defendant provided the evidence of the
following expert witnesses:
1.
Ross A. Hamilton,
of Toronto, Ontario: He is a Chartered Professional Accountant and a specialist
in Investigative and Forensic Accounting. His evidence was provided by way of
an affidavit (Exhibit D-34). He was not cross-examined.
2.
Dr. Neil Shear,
of Toronto, Ontario: His evidence in chief was provided by way of two
affidavits (Exhibits D-22 and D-23). He was cross-examined in person before me.
His qualifications were not contested by the Plaintiffs.
Dr. Neil Shear is a dermatologist
licensed to practice medicine in the province of Ontario with privileges at
Sunnybrook Health Sciences Centre and Women’s College Hospital. He has been the
Head of Dermatology at Sunnybrook since 2001. He is also the Chief of
Dermatology at the University of Toronto and a Professor at the University of Toronto. In his dermatology practice, he regularly treats patients with
psoriasis and prescribes biologics, including Stelara, Humira, Remicade, and
Enbrel.
Janssen proposes to qualify Dr. Shear
as an expert dermatologist to testify on the disease psoriasis, the treatment
of the disease with biologics, the determination of medical need for a particular
biologic and the education of dermatologists about biologics, as set out in his
affidavits, sworn February 24 and April 23, 2014 or as otherwise permitted to
respond to AbbVie’s reply evidence.
3.
Barbara Shea, of Ottawa, Ontario: Her evidence in chief was provided by way of an affidavit (Exhibit D-36).
She was cross-examined in person before me. Her qualifications were not
contested by the Plaintiffs:
Barbara Shea has a Bachelor of Science
in Pharmacy and is currently an independent health care consultant. From 1992
to 2002, she was the Executive Director, Drug Plan and Benefits Branch of Saskatchewan Health. From 2003 to 2011, she was employed by the Canadian Agency for Drugs
and Technologies in Health (CADTH).
Janssen proposes to qualify Ms. Shea
as an expert in the field of pharmaceutical drug coverage to testify about the
administration of private and public drug plans or formularies across Canada,
including the role of CADTH and the Common Drug Review (CDR). She will express
the opinions set out in her affidavit, sworn April 22, 2014, or as otherwise
permitted to respond AbbVie’s reply evidence.
[10]
The Defendant also provided the evidence of the
following fact witnesses:
4.
Allan Stordy, of Calgary, Alberta: His evidence was provided by way of an affidavit (Exhibit D-3). He was
not cross-examined. He gave evidence from the point of view of a person
suffering from moderate to severe psoriasis.
5.
Gwendolyn Ward,
of Georgina, Ontario: She is a law clerk in the offices of the Defendant’s
solicitors. Her affidavit (Exhibit D-4) served to make of record certain
documents. She was not cross-examined.
6.
Michael Santusso,
of Oakville, Ontario: He is a Manager, Medical Information, at Janssen Inc. His
evidence in chief was provided by way of an affidavit (Exhibit D-5). A transcript
of his cross-examination on the Court of Appeal motion was entered into
evidence by the Plaintiffs (Exhibit P-6).
7.
Christine Janus,
of Ottawa, Ontario: She is the Chief Executive Officer and Executive Director
of the Canadian Skin Patent Alliance (SSPA). Her evidence in chief was provided
by way of an affidavit (Exhibit D-7). The Plaintiffs entered into evidence a
transcript of her cross-examination on the Court of Appeal motion (Exhibit
P-8).
8.
Jason Nitert, of Markham, Ontario. He is the Business Unit Director, Rheumatology and Dermatology at Janssen
Inc. and has been responsible for the STELARA product in Canada. His evidence in chief was provided by way of an affidavit (Exhibit D-35). He was
cross-examined in person before me.
9.
Anne Messner, of Toronto, Ontario: She is employed by Janssen Inc. as a Senior Associate, Regulatory
Affairs. She has dealt with Health Canada with respect to the STELARA product.
Her evidence in chief was provided by way of an affidavit (Exhibit D-37). She
was cross-examined in person before me.
[11]
Each of the parties also provided an affidavit
of an English solicitor addressing proceedings in the United Kingdom Courts and
the European Board of Technical Appeals. In this regard the Defendant provided
the affidavit of Wilton Emerys-Evans (Exhibit D-38) and the Plaintiffs provided
the affidavit of David Lawrence Wilson (Exhibit P-39). There was no
cross-examination upon either affidavit. These affidavits were admitted into
evidence, subject to further argument as to relevance. I find their relevance
to be marginal.
[12]
Lastly, each party submitted a document that
they said had been provided to the other party; and no adverse comment
received. I took this as consent that the parties were content as to the
contents of the documents. The Plaintiffs entered a Statement of Facts (Exhibit
P-11), and the Defendant a table as to biologics approved for the treatment of
psoriasis in Canada as of May 10, 2014 (Exhibit D-12).
II.
Issues
[13]
The essential issue to be determined at this
portion of the trial of this action is whether the Court should grant an
injunction; and, if so, under what terms and conditions, if any.
[14]
The Plaintiffs have presented a document
entitled “Third Amended Statement of Issues to be Dealt with at the Injunction
Hearing” which, they argue, sets out their preferences as to the terms of an
injunction to restrain the Defendant from dealing with its STELARA product in
Canada, subject to a number of terms and exceptions. In closing argument the
Plaintiffs presented a much briefer document in the form of a draft Judgment.
[15]
What makes this case different from the usual
patent case is that the Plaintiffs do sell a product in Canada which is
competitive with the Defendant’s STELARA product, it is called HUMIRA, but it does
not fall within the scope of the '281 patent claims at issue. Other than the
Defendant, nobody sells a product in Canada that comes within the scope of the
claims at issue. Further, there appears to be a medical need that at least a
portion of psoriasis sufferers in Canada require the Defendant’s STELARA
product for the effective treatment of their condition.
[16]
Thus, the Court is required to balance on the
one hand, the rights of a patentee to the exclusive use of their claimed
invention, including the right to control, by licence, others who wish to use
the claimed invention, with the commercial desire of the Defendant to sell the
infringing drug and, with a medical need by some members of the Canadian public
to have continued access to the infringing drug.
III.
Psoriasis
[17]
The '281 patent, at page 120, states that
psoriasis involves acute and chronic skin lesions associated with a TH1-type
cytokine expression profile. Dr. Lynde, at paragraph 11 of his first affidavit
(Exhibit P-15) states that psoriasis is a chronic inflammatory skin disease,
which manifests itself in red, scaly, raised patches known as plaques on the
skin, that affects 2 to 3% of the world’s population. Dr. Shear in his opinion
letter (Tab C – Exhibit D-22) says that severe plaque psoriasis is not a
disease that comes and goes; it is relentless and life-long.
[18]
Dr. Lynde, at paragraphs 11 to 13 of his first
affidavit, describes how the severity of psoriasis has come to be defined as
existing at different levels; from mild, to moderate, to severe, depending on
several indicia that have been established by the medical profession. It can
range from simply irritating, to disfiguring, to disabling; particularly when
it occurs on the palms of the hand or soles of the feet.
[19]
In this particular case, we are dealing with
psoriasis, which has been classified as moderate to severe.
IV.
Treatment for Psoriasis
[20]
Psoriasis cannot, apparently, be cured; but it
can be treated so as to alleviate the symptoms for a period of time. Dr. Lynde,
at paragraph 11 of his first affidavit, says that the majority of psoriasis
patients are at the mild to moderate level; patients with moderate to severe
psoriasis are typically treated with a systemic agent such as methotrexate,
acitretin, cyclosporine, or a biologic agent.
[21]
This action is concerned with biologic agents.
The Defendant’s product at issue is STELARA; the Plaintiffs sell a product
called HUMIRA. Biologic agents came on the market in the last decade. Approved
for use in Canada in the treatment of psoriasis are four such products: HUMIRA,
STELARA, REMICADE (also sold by Janssen), and ENBREL (sold by a company known
as Amgen). Three of those products; ENBREC, HUMIRA and STELARA, are
administered by subcutaneous injection, which can often be done by the patient.
The fourth, REMICADE, is administered by intravenous infusion. Of these four
products, three operate by targeting the body’s tumor necrosis factor alpha,
usually stated as TNF-α, or simply, TNF. Those three are REMICADE, ENBREL
and HUMIRA. Only the fourth, STELARA, operates by inhibiting IL-12.
[22]
In cross-examination, Dr. Lynde at Volume 1,
pages 144 and 145, estimated that the number of patients worldwide that have
been on ENBREL was well over one million; that HUMIRA approaches a similar
number; and that STELARA, which is relatively new on the market, is probably
about eighty thousand people. At paragraph 14 of his affidavit, Dr. Lynde
stated that of the five hundred to six hundred of his own patients that are
treated with biologic, approximately 30% use ENBREL, 40% use HUMIRA, 25% use
STELARA, and 5% use REMICADE.
[23]
Dr. Shear in cross-examination, Volume 2, page
321 and 350, described that REMICADE is given in most countries in hospitals;
the others by injection. He described ENBREL as weaker, followed by HUMIRA, and
then you have REMICADE, which was probably the strongest of the three. He
described how, if a patient did not appear to be responding to one, the doctor
may switch to another, which may include switching to STELARA. In his opinion
letter (Tab C, Exhibit D-22), Dr. Shear described switching between various of
these drugs and increasing dosage levels of a particular drug in order to find
a drug and level that would be most effective in the treatment of a particular
patient. Dr. Lynde, at Volume 1, page 171 of his cross-examination, said that
it was a common scenario to switch among the TNF drugs before going to the
IL-12 (STELARA) drug.
[24]
Dr. Shear, at the last page of his opinion
letter, expressed great concern as to what might happen if STELARA were to be
removed from the Canadian market, and that medical information publishing and
supporting of clinical trials and databases, would be of concern. In
cross-examination, Volume 2, pages 287 to 289, he agreed that those concerns
were directed only to a situation where STELARA was to be completely removed
from the market, and there was a complete ban on information.
[25]
Dr. Lynde, in his affidavit at paragraphs 52 to
58, stated that the limited access to STELARA as proposed by the Plaintiffs -
that is, access if a doctor said it was necessary - would alleviate any genuine
risk to patients, and, at paragraphs 36 to 51, described that the curtailment
of sales promotional activity would not impair the dissemination of medical and
scientific information.
V.
Other Uses for Biologics
[26]
In addition to being used in the treatment of
psoriasis, Health Canada has given approval for the use of these four biologics
in the treatment of other diseases. The three TNF drugs, ENBREL, REMICADE, and
HUMIRA, have been approved for several other indications; among them, psoriatic
arthritis. As of January 2014, STELARA has also received Health Canada approval for psoriatic arthritis; however, STELARA has not yet been listed on any
provincial formulary for that purpose.
[27]
No argument has been raised before me that
psoriatic arthritis falls within the claims at issue of the '281 patent.
However, it is argued that, in promoting STELARA ostensibly for treating
psoriatic arthritis, the Defendants may be, in effect, circumventing any
injunction respecting promotion for psoriasis. Also, it is argued, that in
treating psoriatic arthritis with STELARA, a patient who also suffers from
psoriasis may be receiving treatment for his or her psoriasis.
[28]
Psoriatic arthritis is usually dealt with by
doctors specializing in rheumatology, while psoriasis is dealt with by
dermatologists. There may be some doctors who are aware that in treating one
condition, they are also treating the other. That number seems to be very
small.
VI.
Sale and Promotion of
STELARA in Canada
[29]
Jason Nitert on behalf of the Defendant gave most
of the evidence as to the sale and promotion in Canada by Janssen. He has been
one of the persons most responsible for that activity. In his affidavit, filed
with the Court of Appeal and reaffirmed in his affidavit before me (it is Tab A
to Exhibit D-35), Nitert describes how STELARA came into the Canadian market in
January 2008 and, as of December 2013, is the number one biologic product for
the treatment of psoriasis in Canada; it continues to gain market share from
patients who have just started to use biologics (called naive patients) and
those who have switched from another biologic. He states his belief that there
is an average of […] dollars’ worth of inventory of STELARA on the market in Canada in a given month, not including inventory remaining at Janssen Inc. itself.
[30]
In cross-examination, at page 473 of Volume 3,
Nitert testified that Janssen spent in the ballpark of […] dollars in 2013 to
market, advertise, and promote STELARA. He testified that STELARA comes in
either 45 or 90 milligram pre-filled syringes for which a person would pay
approximately forty-five hundred ($4500.00) dollars per syringe. In an initial
year of therapy, when a greater number of syringes were administered, the cost
would be twenty-five thousand ($25,000) dollars for that year; and thereafter,
in maintenance years, the cost would be about eighteen thousand ($18,000)
dollars per year.
[31]
Janssen does not subsidize the cost of the drug,
but has in place a programme that it calls BioAdvance, whereby it will assist a
patient in attempting to secure funding from government sources or private
insurers.
[32]
At pages 474 and 475 of Volume 3, Nitert
testified that the gross profit margin for Janssen on a vial was about […]
percent on a system-wide basis, and that the profit on a local cost basis for
Janssen Canada was around […] to […] percent.
[33]
Nitert testified that the Defendant Janssen Inc.
has done nothing, since my judgment was issued on January 17, 2014, finding
that STELARA infringed claims of the valid '281 patent, to curtail its marketing
and sale of STELARA in Canada, or to stop its promotion of that drug for
psoriasis in Canada (Volume 3, page 488).
VII.
To Grant an Injunction – and on What Terms?
[34]
The Patent Act, RSC 1985, c. P-4, section
57(1)(a) provides that the Court may make such order as it sees fit restraining
a party from further use, manufacture, or sale of the subject matter of a
patent:
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57. (1) In any action for
infringement of a patent, the court, or any judge thereof, may, on the
application of the plaintiff or defendant, make such order as the court or
judge sees fit,
(a) restraining or enjoining the
opposite party from further use, manufacture or sale of the subject-matter of
the patent, and for his punishment in the event of disobedience of that
order,
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57. (1) Dans toute
action en contrefaçon de brevet, le tribunal, ou l’un de ses juges, peut, sur
requête du plaignant ou du défendeur, rendre l’ordonnance qu’il juge à propos
de rendre :
a) pour interdire
ou défendre à la partie adverse de continuer à exploiter, fabriquer ou vendre
l’article qui fait l’objet du brevet, et pour prescrire la peine à subir dans
le cas de désobéissance à cette ordonnance;
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[35]
An injunction normally will follow once the Court has found that a
patent is valid and has been infringed. A classic statement to that effect is
found in the Reasons of Justice Martineau in Eurocopter v Bell Helicopter
Textron Canada Ltee, 2012 FC 113 (aff’d 2013 FCA 219) at paragraph 397:
397 Section 57 of the Act provides the Court with the
discretionary power to issue an injunction, which will be commonly granted for
an infringement or threatened infringement, unless there is some equitable
reason not to do so, such as acquiescence, long delay, lack of clean hands,
unconscionability, or triviality. Moreover, the granting of injunctive relief
is not only to the benefit of a successful party but it is issued by the Court
in the public interest to ensure the enforceability of the Canadian patent
system (see Harold G. Fox, Canadian Patent Law and Practice, 4th ed (Toronto: Carswell,
1969) at page 487; David Vaver, Intellectual Property Law, 2nd ed (Toronto:
Irwin Law Inc, 2011) at page 618 (Vaver); Janssen-Ortho Inc v. Novopharm Ltd,
2006 FC 1234, 57 C.P.R. (4th) 6 at para 132, aff'd 2007 FCA 217, 59 CPR (4th)
116 leave to appeal to SCC refused, [2007] S.C.C.A. No. 442 (QL), 383 N.R. 397
(Janseen-Ortho); Weatherford Canada Ltd v. Corlac Inc, 2010 FC 602 at para
229).
[36]
Justice Gauthier (as she then was) in Valence Technology, Inc v
Phostech Lithium Inc, 2011 FC 174 (aff’d 2011 FCA 237), wrote at paragraphs
239 and 240 that an injunction should only be refused in rare circumstances:
239 Phostech argues that the Court should exercise its
discretion not to grant an injunction until it is in a position to use its P2
process at the new factory being built in Quebec. It says that the Court should
give it a two year grace period because the said installation will not be ready
before at least 2012. In that respect, it relies on Unilever PLC v. Procter
& Gamble Inc. (1993), 47 CPR (3d) 479 at p. 572 and Merck & Co. v.
Apotex Inc., 2006 FC 524 at para. 230.
240 This caselaw is clearly distinguishable on its facts.
The Court should refuse to grant a permanent injunction where there is a
finding of infringement, only in very rare circumstances. I am not satisfied
that those raised in this case warrant such an exception.
[37]
One of those rare circumstances occurred in a case decided by the late
Justice Muldoon when he was a judge of this Court, in Unilever PLC v.
Procter & Gamble Inc. (1993), 47 CPR (3d) 479, where the patent had
less than two years of life left; the patentee did not sell a product that came
within the scope of the patent, although it sold a competitive product; and the
defendant’s product was made by people with disabilities, who were otherwise
unemployable. He wrote, in part:
The patent in suit was issued in 1977 and the present
litigation was commenced in 1985. As already found by the Court the plaintiffs'
conduct falls short of barring their law suit on account of alleged
acquiescence, but if as alleged by plaintiffs' counsel, they were being led
"up [sic] the garden path" by P & G's Witte, they could always
have declined to be so seduced, as plaintiffs' counsel would have the Court
believe, and they could have shown their determination by instituting court
action some year or two before 1985. Such delay is only one factor to be
considered in these circumstances as was held in Consolboard, supra.
. . .
In the circumstances of this case the Court declines, as
above mentioned, to issue an injunction against P & G for effect throughout
the balance of the patent's term which will expire in September, 1994. The fact
of the plaintiffs' never having practised the patented invention in Canada, the
hardship which an injunction would inflict on the infringing defendants, and
also, and especially, on their innocent employees in these hard economic times
which still appear to be a full blown recession (pace Statistics Canada) in
which unemployment insurance benefits payable and the level of unemployment do
not need to be expanded, and by contrast, the absence of a competing workforce
engaged by Lever, are all factors inter alia in the exercise of the Court's
discretion. No permanent injunction is awarded.
[38]
The Ontario Court of Appeal very recently considered the test applicable
in considering whether to grant a permanent injunction in 1711811 Ontario
Ltd v Buckley Insurance Brokers Ltd, 2014 ONCA 125. It held, in adopting
the reasoning of Groberman JA of the British Columbia Court of Appeal in Schooff
v British Columbia (Medical Services Commission), 2010 BCCA 396
(referred to as Cambie Surgeries) that the three-part test used in
considering interlocutory injunctions did not apply when considering final
injunctions. In considering a final injunction, a party is required to
establish its legal rights; the Court must then determine whether an injunction
is an appropriate remedy. Irreparable harm and balance of convenience, per
se, are not relevant, but may inform the determination as to whether an
injunction is an appropriate remedy. Gillese JA, for the Court, wrote at
paragraphs 74 to 80:
74 The test for interlocutory injunctions is the familiar
three-part inquiry set out in RJR-MacDonald: is there a serious issue to be
tried; would the moving party otherwise suffer irreparable harm; and, does the
balance of convenience favour granting the injunction.
75 Does that same test apply when the court is deciding
whether to grant permanent injunctive relief? AdLine contends that it does and
points to cases such as Hanisch v. McKean, 2013 ONSC 2727, at para. 111, and
Poersch v. Aetna, 2000 CanLII 22613 (Ont. S.C.), at para. 103, where the courts
have expressly applied the test when deciding whether to grant permanent
injunctive relief.
76 I would not accept this submission. In my view, a
different test must apply.
77 The British Columbia Court of Appeal recently considered
the test for a permanent injunction and its relationship to the test for an
interlocutory injunction. In the decision under review in Cambie Surgeries
Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323
D.L.R. (4th) 680, the trial judge granted permanent injunctive relief based on
the test for an interlocutory injunction. Despite the parties' agreement that
the trial judge correctly set out the test, the British Columbia Court of
Appeal held that the wrong test had been applied and reversed the trial
decision.
78 Justice Groberman, writing for the court, explained that
the RJR-Macdonald test is for interlocutory -- not final or permanent --
injunctions. At para. 24 of Cambie Surgeries, he explained that the
RJR-Macdonald test is designed to address situations in which the court does
not have the ability to finally determine the merits of the case but,
nonetheless, must decide whether interim relief is necessary to protect the
applicant's interests.
79 In paras. 27-28 of Cambie Surgeries, Groberman J.A.
explained:
Neither the usual nor the modified test discussed in
RJR-MacDonald has application when a court is making a final (as opposed to
interlocutory) determination as to whether an injunction should be granted. The
issues of irreparable harm and balance of convenience are relevant to
interlocutory injunctions precisely because the court does not, on such
applications, have the ability to finally determine the matter in issue. A
court considering an application for a final injunction, on the other hand,
will fully evaluate the legal rights of the parties.
In order to obtain final injunctive relief, a party is
required to establish its legal rights. The court must then determine whether
an injunction is an appropriate remedy. Irreparable harm and balance of
convenience are not, per se, relevant to the granting of a final injunction, though
some of the evidence that a court would use to evaluate those issues on an
interlocutory injunction application might also be considered in evaluating
whether the court ought to exercise its discretion to grant final injunctive
relief.
80 I would adopt this reasoning. The RJR-Macdonald test is
designed for interlocutory injunctive relief. Permanent relief can be granted
only after a final adjudication. Different considerations operate and,
therefore, a different test must be applied, pre- and post-trial.
[39]
In considering the discretion that I have, I will address the following:
a.
What are the Plaintiffs Requesting?
b.
What is the Defendant Proposing?
c.
What Interests are the Plaintiffs Seeking to Protect?
d.
What Interests is the Defendant Seeking to Protect?
e.
What Interests does the Public Have?
A.
What are the Plaintiffs Requesting?
[40]
The Plaintiffs are requesting a permanent injunction for the remaining
life of the '281 patent, which expires March 24, 2020 subject, however, to
significant exceptions.
[41]
The Plaintiffs are prepared to allow, as an exception, the continued use
of STELARA by existing patients, and the use by new patients in particular
circumstances. The Plaintiffs are requesting that the Defendant send a letter
to dermatologists acknowledging the Plaintiffs’ victory in the patent dispute
and explaining why STELARA will not be promoted.
[42]
The Plaintiffs are content to let Janssen continue to provide medical
information and to comply with Health Canada’s lawful requests. They want
Janssen to stop marketing activity, such as detailing.
B.
What is the Defendant Proposing?
[43]
The Defendant, in closing argument, proposes that I wait until the Court
of Appeal disposes of its appeal on the infringement and validity issues. It
proposes further that the matter wait until damages have been assessed, at
which time Janssen will continue to sell, subject to paying what, in effect,
would be a continuing royalty.
C.
What Interests are the Plaintiffs Seeking to Protect?
[44]
The Plaintiffs do not make or sell a product in Canada, or anywhere else,
that comes within the scope of the claims at issue of the '281 patent. They do
make another biologic product, HUMIRA, that competes, for the most part, for
the same patients seeking treatment for their psoriasis; as does Janssen’s
STELARA.
[45]
Mr. Manning, the Plaintiffs’ representative, put the Plaintiffs’
interests very candidly in response to a question put to him by Counsel in
direct examination; the Plaintiffs want to preserve the largest “footprint”
possible for HUMIRA. At Volume 1, pages 87 to 88, he said:
Q. Thank you. I have one last question which relates to
the damages issues in this case.
Can you tell the court, Mr. Manning, why isn’t
AbbVie willing to let Janssen continue to infringe unrestrictedly and just take
a cheque now for damages?
A. From a strictly commercial standpoint, and I know
that this morning there’s been a lot of talk about sales, but in my role
leading the immunology division my job was to drive the profitability of my
division.
And so, what I’d like to do as a person that’s
driving the commercial aspect of this business, is to have the largest Humira
footprint that I can possibly have and the reason for that is that I can
utilize that footprint in order to negotiate with payers, with wholesalers,
with other third-party providers in order to make my business more profitable.
So just receiving a royalty cheque doesn’t actually
allow me to leverage to try to become a more profitable business. Secondly, in
a market like this that’s so innovative and so fast-changing I think it would
be very difficult to determine, especially to try to determine into the future,
what the damages might look like.
As you can see from the graph we’ve went through you
have competitors changing positions all the time.
And then, lastly, I’m aware through the process of
this case that AbbVie’s IL-12 patent lapses in 2020 and my understanding is
that we wouldn’t be able to seek damages beyond 2020. That could mean a patient
put on Stelara today there’s a likelihood that that patient would remain on Stelara
past 2020 and AbbVie would lose any benefit from that patient, where if the
patient were to go on Humira today with a high likelihood that that patient
remains on therapy post-2020, then we would be able to capture a benefit post
the lapse of the IL-12 patent here in Canada.
D.
What Interests is the Defendant Seeking to Protect?
[46]
The evidence of Mr. Nitert, the Defendant’s representative, shows that
STELARA entered the Canadian market in 2008. It competes with three other
biologics; one of them is HUMIRA. Presently, STELARA is the largest-selling
single biologic in the market, and experiences continued growth.
[47]
As previously discussed, the cost of the drug is high, and the profit
margins of the Defendant are large; and the profit margins of the entire
Janssen organization are enormous.
[48]
The Defendant is seeking to protect a very lucrative and growing market
in Canada.
[49]
There is no evidence before me that an injunction would cause serious or
irreparable harm to Janssen. It may have a loss of income and some possible
loss of reputation in having its sales stopped or curtailed but that is a
natural consequence of losing a patent action.
E.
What Interests does the Public Have?
[50]
In many patent actions, the subject matter of the patent is directed to
something that is readily replaced by, or substituted with, another product;
for instance, a watch or a bicycle. The public may lose its ability to acquire
or use one such product, but it can readily access a reasonable alternative.
[51]
Here, however, there are some patients in Canada for whom there is no
alternative to STELARA in the effective treatment of their psoriasis. Another
consideration is that of the treating physician, Dr. Shear, in his opinion
letter (Tab C, Exhibit D-22) said “we need options”.
He argued that a physician should have a reasonable opportunity to switch from
one product to another, so as to determine which product may best serve the
particular needs of a particular patient.
[52]
The needs of the larger community should also be kept in mind.
[53]
These drugs are very expensive. Very few, if any, patients pick up the
cost themselves. The cost is borne by private insurers, or some government
agency. Janssen has a programme in place, which it calls BioAdvance, whereby it
undertakes, on behalf of the patient, to negotiate with the insurer or agency
so far as to secure funding for the patient. The Plaintiffs have a similar
programme for HUMIRA. I suspect that, given the high costs of their drugs and
the high profit margin, there may be a significant degree of self interest in
the drug companies to ensure that the costs are passed on to third parties such
as insurers and the government, and to insulate the patient and the doctor from
any concerns as to costs.
VIII.
Balancing the Interests and Crafting the Terms
[54]
Having regard to the foregoing, I will grant an injunction; but,
especially since the Plaintiffs themselves have proposed it, there will be an
exception for existing and new patients. I will curtail the marketing of
STELARA while ensuring that medical information will continue to be available.
[55]
My task in crafting the terms of the injunction is to make those terms
clear and workable.
[56]
The following parts of these Reasons are directed as to why I crafted
some of the terms in the way that I did.
IX.
Party to be Enjoined
[57]
There is only one Defendant, Janssen Inc. I have worded the injunction
in a way that is usual in such cases so as to enjoin Janssen Inc, its officers,
directors, servants, agents, employees, all those with whom it acts in concert,
and all those over whom it exercises control. This is defined as Janssen in the
Judgment.
[58]
The Plaintiffs want me to add as persons restrained by the injunction:
a Janssen Affiliate, or(person) with which Janssen Inc. or a
Janssen Affiliate has contracted to do or assist in doing any of the acts enjoined
herein:
[59]
A “Janssen Affiliate”
is described by the Plaintiffs as:
any other person, company, partnership or business with which it
[Janssen Inc.] is associated or affiliated
[60]
A “Janssen Affiliate”, as so defined, is
potentially quite broad, and certainly is indefinite. It would appear to
include parties not before the Court in this action; including, possibly,
parties in other jurisdictions.
[61]
I will not extend the injunction as far as the Plaintiffs request. My
definition is sufficient to deal with the Defendant before me, and the
activities which it may contract, or with which it may be involved.
X.
Certifying the Need for STELARA for New Patients
[62]
The Plaintiffs propose that STELARA may be prescribed for use by
patients who have never used it before, provided that the patient’s physician
has certified, in effect, that it is the last resort. The Plaintiffs’ initial
proposal was that the physician certify that all other biologics have been
tried. Apparently, the doctors balked at this, since it would require them to
try all three alternatives first. The Plaintiffs modified their request to that
requiring the physicians certify that they have at least tried HUMIRA, the
Plaintiffs’ biologic.
[63]
The Plaintiffs propose that the physician certify the need for STELARA
by checking off a box next to a statement saying:
I hereby certify that this patient has a medical need for
Stelara that cannot be met by Humira.
[64]
The Plaintiffs propose that the box and caption be placed on a form called
“Patient Enrolment and Rx Form”, which Janssen provides with its BioAdvance
programme to insurers and government agencies to secure funding, on the
patient’s behalf, for STELARA.
[65]
Janssen argues that doctors will, in effect, be forced to prescribe
HUMIRA to their patients before certifying the need for STELARA. They also
argue that it is difficult and time consuming to amend the form. These matters
are contested by the Plaintiffs.
[66]
I propose to have faith in the integrity of our medical profession in Canada. New patients may be prescribed STELARA, provided that such patient’s own physician
has determined that prescribing STELARA is necessary for treatment of the
patient’s psoriasis. I will not require that the physician sign a form or check
off a box. I appreciate that this provision does not have the rigour of the
method urged by the Plaintiffs; however, I view that rigour to be overly
restrictive and too skeptical of the integrity of our doctors. I have included
a provision prohibiting Janssen from trying to influence the decisions of such doctors.
XI.
Marketing and Promoting STELARA
[67]
Central to the issue of the marketing and promotion of STELARA for the
treatment of psoriasis in Canada is the role of persons called product
representatives or “detail” persons. The evidence of Drs. Lynde and Shear illustrated
the role of such persons, as did the evidence of Mr. Manning and Mr. Nitert.
[68]
Drs. Lynde and Shear explained that they gained most of their
information about a drug such as STELARA from a product monograph, scientific
literature, meetings, conferences, and discussions with peers. Janssen has a
Medical Information Specialist on staff who can answer technical inquiries from
doctors about such a drug. The Plaintiffs do not seek to restrain the
dissemination of, or access to, technical information or this sort.
[69]
A “detail” person, of whom Janssen employs a number, is essentially a
sales representative. “Detail” persons visit doctors several times a year, as
explained by Mr. Nitert in cross-examination, Volume 3, pages 465 to 473. Their
function is to execute the marketing strategy of Janssen. They are paid a
salary and, if they meet certain sales quota – for instance, for STELARA – they
are paid a bonus. They are not allowed to give information beyond that
contained in a product monograph. They may “leave behind” literature that
promotes the product, but does not go beyond the monograph. As Dr. Shear said
in cross-examination, at Volume 2, page 273, someone who is working for the
marketing department must be considered as part of the marketing strategy.
[70]
In cross-examination, Volume 3, pages 470 to 472, Mr. Nitert explained
that not every dermatologist is as diligent as Drs. Lynde and Shear, and may
require the assistance of a detail person to “shape their
own decisions”.
[71]
The injunction provided herein is intended to permit the dissemination
of scientific and medical information, while restraining marketing activity by
detail persons.
XII.
Notifying Formularies
[72]
The Plaintiffs have requested that the Judgment granting an injunction
include provisions requiring Janssen to approach all public and private
formularies to add new criteria respecting the provision of and funding for
STELARA having regard to the injunction.
[73]
I will not make such provision. If it is necessary by law or by the
requirements of the formularies on by Janssen’s relationship with those
formularies, then I expect that Janssen will take the initiative to do what is
necessary.
[74]
If the Plaintiffs believe that it is desirable that such formularies be
informed as to the injunction and its terms, they are free to provide accurate
information, such as may be necessary.
XIII.
Health Canada
[75]
Health Canada, a federal government agency, plays a role in ensuring
that drugs made available to the public in Canada are safe and effective.
Before a drug is allowed to be made available, it must undergo rigorous testing
and receive a Notice of Compliance before it can be made available. That Notice
permits the drug to be available in a particular form and dosage for a
particular use, such as treatment of psoriasis. If a different form or dosage
or use is sought by the drug company, it must receive a new or a Supplementary
Notice of Compliance. Health Canada plays a continuing role in monitoring the
drugs on the market, even after a Notice of Compliance has been issued.
[76]
The evidence of Anne Messner is a Janssen employee responsible for,
among others, the STELARA drug. She was cross-examined at length concerning the
nature of requests that were made by Health Canada of a drug company such as
Janssen. I conclude from her evidence that requests from Health Canada can be based on the Food and Drug Act or its Regulations, or Guidelines of
Health Canada, or policy provisions. Sometimes it is difficult to tell which of
these forms the basis of the request; particularly from the point of view of a
layperson not highly experienced in the legal niceties of the situation. As Ms.
Messner answered in cross-examination, at Volume 3, page 538:
However, in my experience, pharmaceutical manufacturers do
clearly abide not only by the Act and the regulations, but by the guidance
provided to them by Health Canada.
[77]
I have discussed Health Canada because the Plaintiffs urged, as a term
of the injunction requested, that Janssen be ordered to comply only with lawful
requests from Health Canada. I am satisfied that this places too great a burden
on Janssen in determining whether the request is “lawful” or not. I am
satisfied that Health Canada would not knowingly make an unlawful or frivolous
request. Janssen would feel obliged to answer any request from Health Canada as best it could; therefore, I will make it clear in my Judgment that Janssen is free to
respond to any request from Health Canada.
XIV. A
Letter
[78]
The Plaintiffs requested that I include as part of my Judgment, terms
requiring Janssen to send a letter to Canadian physicians who had prescribed
STELARA for the treatment of psoriasis in the previous year, and to
dermatologists who had been visited by a Janssen representative for the purpose
of detailing the use of STELARA for the treatment of psoriasis in the previous
year. A draft of such a letter was provided, which, over two pages, states that
AbbVie was the inventor of the use of IL-12 antibodies, that the patent was
found to be valid and infringed by Janssen’s STELARA, that every sale was an
infringement, that this Court provided an injunction whereby limited use could
continue, and so forth.
[79]
Understandably, Janssen has resisted any Order that would require it to
send such a letter. It goes so far as to rely on section 2(b) of the Charter
of Rights and Freedoms, and the decision of Justice Beetz of the Supreme
Court of Canada in National Bank of Canada v Retail Clerks’ International
Union, [1984] 1 S.C.R. 269, where, at paragraph 81, he wrote, in respect of
such a letter ordered by the Canada Labour Board to be written:
I cannot be persuaded that the Parliament of Canada intended to
confer on the Canada Labour Relations Board the power to impose such extreme
measures, even assuming that it could confer such a power bearing in mind the
Canadian Charter of Rights and Freedoms, which guarantees freedom of thought,
belief, opinion and expression.
[80]
The Plaintiffs rely on a subsequent decision of the Supreme Court of
Canada in Slaight Communications Inc v Davidson, [1989] 1 S.C.R. 1038,
where Dickson CJ, for the majority, at paragraph 21, wrote that a tightly and
carefully designed letter would minimally impair the rights of the parties and
could be ordered in the particular facts of that case:
21 Consider the facts of this particular case. The letter
was tightly and carefully designed to reflect only a very narrow range of facts
which, we saw, were not really contested. As already discussed, unlike in
National Bank, supra, the employer has not been forced to state opinions
("views and sentiments", per Beetz J., at p. 295) which are not its
own. Rather, the negative order seeks to prevent the employer from passing on
an opinion, such prohibition being closely tied to the history of abuse of
power which had been found to exist. Furthermore, that prohibition is very circumscribed.
Firstly, it is triggered only in cases when the appellant is contacted for a
reference and, secondly, there is no requirement to send the letter to anyone
other then prospective employers. In sum, this is a much less intrusive and
carefully designed order than that in National Bank in which the bank was
required to send to a very large audience (all the employees and management
staff of the bank) what amounted to a letter of contrition which conveyed the
impression that certain opinions expressed therein were those of the employer.
[81]
In the present case, I asked Counsel for the Plaintiffs why the
Plaintiffs themselves could not communicate with doctors to present the
circumstances of their victory and the terms of an injunction. The answer was that
they could, but that it would have greater weight if it came from Janssen. I am
not persuaded that this is a sufficient basis upon which I should order that
Janssen send such a letter. Such a letter is an exceptional thing to order;
simply because a letter from Janssen, albeit a “forced” letter, may have
greater weight; particularly from a marketing or bragging rights point of view,
simply does not provide a sound basis for ordering such a letter to be sent.
XV.
Phase IV Trials
[82]
The Plaintiffs request, as a term of the injunction, that Janssen be
precluded from conducting any Phase IV trial in Canada in respect of STELARA
for use in the treatment of psoriasis.
[83]
As explained by Ms. Gryfe in her examination in chief, Volume 2, page
435, Phase IV clinical trials are conducted after the drug has been approved by
Health Canada, and are voluntary. They are generally done to confirm or support
information, and sometimes to support marketing efforts.
[84]
The Janssen executive, Nitert, in cross-examination, Volume 3, pages 484
and 485, stated that Janssen does not have any Phase IV studies underway, and
none are planned.
[85]
Plaintiff’s Counsel explained, in argument, that Phase IV studies would
require recruitment by Janssen of persons suffering from psoriasis for the
purpose of administering STELARA as a treatment, and analyzing the results.
[86]
The recruitment of new patients would, therefore, undermine the terms of
the injunction sought. I agree.
[87]
Given that no Phase IV trials are underway or contemplated, and that
such studies may undermine the terms of the injunction, the injunction shall
include a prohibition against Phase IV trials by Janssen; unless, of course, they
are required by law, in which case I expect Janssen to demonstrate any basis
relied upon by it that the tests are required by law.
XVI. Stay
[88]
Janssen requested in final argument that if I were to grant an
injunction, that I stay the implementation of the injunction for a period of
time. A selection of periods of time were suggested by Janssen’s Counsel in
closing submissions.
[89]
In Janssen-Ortho Inc v Novopharm Inc, 2006 FC 1234, at paragraph
133, I granted a stay of thirty (30) days, but I ordered that the monies
received upon the sale of the drug in that period be set aside and put into a
trust account:
133 As to an injunction that remedy normally follows a
finding that a valid patent has been infringed. While this action has gone on
for a much lesser time than the Merck, supra, action, here only about two
years, it must be considered that this Court has in other proceedings refused
to prohibit the granting of an NOC to the Defendant so that the Defendant had
entered the market and commenced to sell its levofloxacin products. The English
Court of Appeal in Minnesota Mining & Manufacturing Co. v. Johnson & Johnson Ltd., [1976] RPC 671 at 676 et seq reviewed the importance of the exercise
of discretion in awarding a permanent injunction. Accordingly, an injunction
will be granted, but to take effect only after thirty days from the date of
issuing of these Reasons that is the period of time allowed for filing an
appeal. In that time the Defendant's may continue to sell or otherwise dispose
of its levofloxacin products already in its possession, custody or control, but
only in the normal course of business and provided that all monies received in
respect thereof are accounted for and held in a separate trust fund to be paid
to the Plaintiffs or as they may direct by December 31, 2006. These monies are
to be taken into consideration, by way of set off or otherwise, when a final calculation
as to damages is made.
[90]
Neither party in the present action wanted me to make a similar order
here.
[91]
While there are occasions where a stay is desirable, this is not one of
them. First, Janssen has provided me with no evidence as to hardship that it
would suffer. A party seeking a stay has an obligation to provide some evidence
as to hardship. In fact, the evidence is to the contrary. This action was
commenced in 2009; at that time, Janssen had just come on the market with
STELARA. It knew that there would be some chance that an injunction could be
granted; it took the risk. On January 17, 2014, I released a Judgment finding
that Janssen’s STELARA product infringed two valid claims of the '281 patent.
At that point, Janssen was faced with the near certainty of an injunction. As
Prothonotary Aalto put it in his reasons for his Order dated September 26,
2011, when he bifurcated the trial of infringement and validity from the
remedies, at page 9:
…Janssen would be ill-advised to continue selling the drug in
the face of a finding of infringement.
[92]
Given all this advance warning, it is puzzling why Janssen would not
have made appropriate plans to deal with an injunction. It did nothing. I
repeat the answers given by Janssen’s executive Nitert in cross-examination,
Volume 3, page 488:
Q. You are aware, sir, that in January this Court found
that Stelara infringes AbbVie’s patent”
A. I’m aware.
Q. And since that time, has Janssen done anything to
curtail its marketing and sale of Stelara for psoriasis in Canada?
A. No.
Q. Has Janssen taken any steps to stop its promotion of
Stelara for psoriasis in Canada?
A. No.
[93]
Janssen was either ill-advised or afflicted with hubris.
[94]
A second reason for declining to grant a stay is that if Janssen takes a
careful look at the terms of the injunction, what it must do immediately is
curtail its marketing and advertising of STELARA as directed to psoriasis, and
restrain itself from influencing doctors in choosing whether to prescribe the
drug or not. Existing patients and new patients who need the drug continue to
be able to receive it.
[95]
I am aware, through the affidavits of Emerys-Evans and Wilson, of
proceedings in the United Kingdom Courts and the European Board of Technical
Appeals. The United Kingdom proceedings brought by the Plaintiffs or their
counterparts against Janssen counterparts for infringement of a patent that may
be similar to the one at issue here; have been stayed, pending a final validity
determination by the European Board. Wilson says that this is a normal practice
in the circumstances.
[96]
I am also aware, as I commented in my earlier decision, 2014 FC 55, at
paragraphs 86 to 88, of proceedings in the United States of the same nature.
Janssen’s Counsel advised that there was a stay there.
[97]
I do not consider the foreign proceedings to have any material bearing
on the matters now before me. I will not grant a stay of the injunction.
XVII.
Conclusion and Costs
[98]
In conclusion, I will grant an injunction, with exceptions, in the terms
recited in the Judgment issued contemporaneously with these Reasons.
[99]
I will award costs to the Plaintiffs at the high end of Column V. I do
so, recognizing that the cost levels in this Court have fallen below those
granted in many other Courts in Canada; because, other than full indemnity,
these are the highest costs allowable. I award costs at this level because
Janssen did not co-operate in endeavouring to craft a suitable Judgment; it did
nothing in response to several drafts proposed by the Plaintiffs. I also do so
because Janssen did nothing, following the release of my decision in January
2014, to curtail its activities.
[100] In
assessing its costs, the following principles shall apply:
•
the Plaintiffs are allowed the reasonable fees and disbursements
of all of their experts, provided that the fees do not exceed the rates
chargeable by the Plaintiffs’ senior Counsel for like time;
•
the fees of two senior and two junior Counsel at the trial are
allowed;
•
no fees or disbursements are allowed in respect of the evidence
filed in the Court of Appeal and re-filed in this Court, as the Court of Appeal
has already disposed of those costs
•
no fees or disbursements of any person other than Counsel and
expert witnesses, as stated above, who attended at trial are allowed;
•
disbursements of fact witnesses are allowed; and
•
six copies of documents filed as exhibits or used in argument, in
addition to that filed with the Court, are allowed.
“Roger T. Hughes”
Toronto, Ontario
Public Reasons for
Judgment May 29, 2014
Confidential Reasons
for Judgment May 22, 2014
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