Date: 20050412
Docket: A-381-04
Citation: 2005 FCA 128
CORAM: DÉCARY J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
and
BAYER AG and BAYER INC.
Respondents
and
THE MINISTER OF HEALTH
Respondent
Heard at Toronto, Ontario, on April 7, 2005.
Judgment delivered at Ottawa, Ontario, on April 12, 2005.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: EVANS J.A.
MALONE J.A.
Date: 20050412
Docket: A-381-04
Citation: 2005 FCA 128
CORAM: DÉCARY J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
APOTEX INC.
Appellant
and
BAYER AG and BAYER INC.
Respondents
and
THE MINISTER OF HEALTH
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This is an appeal from an Order of Campbell J. rendered on June 22, 2004 whereby he declined to hear a motion by the appellant, Apotex Inc., for directions as to costs under Rule 403 of the Federal Courts Rules.
[2] Apotex had been successful in a Notice of Compliance prohibition application filed by the respondent, Bayer AG, and costs were awarded in its favour. Apotex then brought a motion under Rule 403 requesting an order that its costs be assessed on a solicitor and client basis or, in the alternative, on an elevated scale. Campbell J. declined to hear the motion on the ground that he considered himself functus and he eventually made an Order to that effect. Hence the within appeal.
[3] Rule 403 reads as follows:
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403. (1) A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400,
(a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or
(b) in a motion for judgment under subsection 394(2).
(2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs.
(3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment.
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403. (1) Une partie peut demander que des directives soient données à l'officier taxateur au sujet des questions visées à la règle 400 :
a) soit en signifiant et en déposant un avis de requête dans les 30 jours suivant le prononcé du jugement;
b) soit par voie de requête au moment de la présentation de la requête pour jugement selon le paragraphe 394(2).
(2) La requête visée à l'alinéa (1)a) peut être présentée que le jugement comporte ou non une ordonnance sur les dépens.
(3) La requête visée à l'alinéa (1)a) est présentée au juge ou au protonotaire qui a signé le jugement.
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[4] In Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc., [2003] 2 F.C. 451 (F.C.A.), this Court has determined that "a motion under rule 403 must be considered a statutorily sanctioned procedure for the amendment or variation of a judgment" (Rothstein J.A., at paragraph 3) and that such a motion "is in reality a motion seeking to vary the order of the Court" (Décary J.A., at paragraph 28).
[5] In Maytag Corp. v. Whirlpool Corp., 2001 FCA 650, Sharlow J.A. stated that "Rule 403(3) overrides the more general requirements for reconsideration of a judgment in Rule 397" (at paragraph 7). For similar statements, one may refer, also, to Blais J. in Trade Arbed Inc. v. Toles Ltd., [2000] F.C.J. No. 1934; Gauthier J. in Astra Zeneca Canada Inc. v. Apotex Inc., 2004 FC 1075; and Lemieux J. in AB Hassle v. Apotex Inc., 2004 FC 1582.
[6] The statement in AB Hassle v. Genpharm Ltd., 2004 FC 892, at paragraph 11, that Rule 403 "does not provide an avenue to vary an order that specifies the costs to be awarded" is, in my respectful opinion, erroneous. It is based, first, on a misconception of what had actually happened in Consorzio, where, contrary to what the learned Judge states in paragraph 8 of her reasons, the judgment had included an order for costs and, second, on a decision of Strayer J.A. in Canada v. Canadian Pacific Ltd., 2002 FCA 98, which can be distinguished on the ground that a party had sought under Rule 403 its costs in other courts and other proceedings.
[7] Since a party is at liberty under Rule 403 to seek to obtain or to vary an order of the Court with respect to costs, the concepts of res judicata or functus officio are simply not applicable. The judge seized with the motion must hear it and dispose of it. He or she may form the opinion that the motion is vexatious (where, for example, prior to the making of the order the issue of costs had been fully canvassed by parties made aware of the outcome of the case or where a party had waived its right to costs) and dismiss it on that basis, but the judge cannot refuse to hear and to dispose of it.
[8] Counsel for Bayer AG argues that, at the hearing, counsel for Apotex had waived the right to claim elevated costs. The very brief discussion over the issue of costs which occupies a few lines in the transcripts does not support counsel's interpretation. When counsel agrees that costs should be "in the cause," he or she only agrees which party should eventually bear the costs, not their eventual quantum.
[9] The appeal should therefore be allowed with costs in this Court and the motion under rule 403 should be remitted to Campbell J. for adjudication on its merit.
"Robert Décary"
J.A.
"I agree.
John M. Evans, J.A."
"I agree.
B. Malone, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-381-04
STYLE OF CAUSE: APOTEX v.
BAYER AG AND BAYER INC AND THE MINISTER OF HEALTH
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 7, 2005
REASONS FOR
JUDGMENT BY: Décary J.A.
CONCURRED IN BY: Evans J.A.
Malone J.A.
DATED: April 12, 2005
APPEARANCES BY:
Andrew Brodkin FOR THE APPELLANT
Neil R. Belmore
Ken Clark FOR THE RESPONDENT
SOLICITORS OF RECORD:
Goodmans LLP
Toronto, Ontario FOR THE APPELLANT
Gowling Lafleur Henderson LLP
Toronto, Ontario FOR THE RESPONDENT
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