Date: 20161102
Docket:
T-366-14
Citation:
2016 FC 1218
Ottawa, Ontario, November 2, 2016
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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ELI LILLY
CANADA INC.
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Applicant
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and
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HOSPIRA
HEALTHCARE CORPORATION
AND THE
MINISTER OF HEALTH
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Respondents
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and
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TAKEDA
PHARMACEUTICAL COMPANY
LIMITED
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Respondent Patentee
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SUPPLEMENTARY JUDGMENT AND REASONS
[1]
Hospira Healthcare Corporation (Hospira) brings
this motion seeking directions concerning the assessment of its costs in this
proceeding. It requests a lump sum award of $576,001.12 plus interest of 5% per
annum from the date of my decision. This figure is made up of $202,412.00 for
legal costs and $373,589.12 for disbursements. Of the disbursements,
$255,968.42 is made up of fees charged by five experts. In the alternative, Hospira
seeks directions from me that will facilitate the assessment of its costs
entitlement at a taxation.
[2]
Eli Lilly Canada Inc. (Lilly) suggests that a
more appropriate lump sum would be $317,032.42 plus interest. This figure is
obtained by recognizing an allowance for legal costs of $139,556.08 and
disbursements of $283,709.89 subject to a 25% reduction for Hospira’s “unsubstantiated” allegations of fraud made under
Section 53 of the Patent Act, RSC 1985, c P -4.
[3]
Takeda Pharmaceutical Company Limited relies on
Lilly’s arguments as to quantum and argues that, as a mandatory responding
party with a truncated role in the application, it should not bear any cost consequences.
Takeda also points out that Hospira made no explicit claim to costs against it
and should not be allowed to resile from that position.
[4]
I agree with the parties that it is preferable
to resolve the outstanding issue of costs with a lump sum award.
[5]
On the issue of a reduction of costs for
unproven Section 53 allegations, I agree with Hospira that this was an
alternative allegation in the NOA that was contingent on Lilly’s adoption of a
position it did not assert. There was, accordingly, no live Section 53 issue
presented to the Court for determination. In the result, the award for costs
will not reflect any reduction on this point.
[6]
I agree with counsel for Hospira that this
proceeding was complex but that is the very reason for an award at the high end
of Column IV. It is not a basis for a further increase. The usual practise is
to allow for two counsel at the hearing and not three, as claimed here. The
fact that the unsuccessful party may employ three or more counsel at various
stages of the case is of no particular relevance. An award of costs is not
intended to represent a full indemnity, but only a reasonable contribution to
the costs of litigation.
[7]
I do agree with Hospira that travel once from
Toronto to Ottawa and return for the hearing is justified for two counsel and
for the other required attendances where two counsel were present. On the other
hand, twelve attendances to meet with Dr. Kalman before his cross-examination seems
unusual and excessive.
[8]
The fees paid to Hospira’s experts appear to be
reasonable and there is no basis to discount any of those charges. Although I
have no reason to doubt the veracity of the remaining disbursement claims, I
have nothing, beyond counsel’s general assurances, to attest to their
reasonableness. Some allowance should therefore be made to reflect this
evidentiary gap.
[9]
In the absence of an allowance for a Section 53 reduction,
the parties are effectively $153,291.0 apart. The differential for
disbursements is $90,436.00 and for costs, $62,856.00.
[10]
In the circumstances, I will allow Hospira costs
and disbursements in the amount of $495,000.00 plus interest at 3.5% per annum
from January 15, 2016 to the date of payment. This includes amounts for the
costs payable in the earlier motions and for this motion. The award is wholly
payable by Lilly.
JUDGMENT
THIS COURT’S JUDGMENT IS that: Hospira
Healthcare Corporation is awarded its costs against Eli Lilly Canada Inc. in
the amount of $495,000 plus interest at 3.5% calculated from January 15, 2016
to the date of payment.
"R.L. Barnes"
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