Docket: T-1844-07
Citation: 2017 FC 610
Ottawa, Ontario, June 20, 2017
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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TEVA CANADA
LIMITED
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Plaintiff
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and
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PFIZER CANADA
INC.
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Defendant
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JUDGMENT
AND REASONS
[1]
In the Judgment in this matter on
redetermination at 2017 FC 526, the Plaintiff [Teva] was awarded its costs of
the redetermination and the Defendant [Pfizer] was awarded its “reasonable costs thrown away as a consequence of the
cancellation of the initial hearing of this redetermination.” The
parties were provided with an opportunity to reach agreement on those costs. The
Court has been informed that the parties have come to an agreement on the
quantum of Teva’s costs on the redetermination; but have failed to reach
agreement on the costs to be awarded to Pfizer. That is the sole issue
remaining for determination.
[2]
Pfizer submits that it ought to be awarded its
costs thrown away on a full-indemnity basis, or in the alternative on a
substantial or partial recovery basis, for the two week period prior to the
cancellation of the originally scheduled hearing. Teva submits that Pfizer’s
costs ought to be assessed at the upper end of Column IV of Tariff B, or in the
alternative, if Pfizer’s costs are awarded on an elevated basis, that they be
reduced by at least 50% to reflect preparation work that remained useful. In
any event, Teva submits that Pfizer’s costs thrown away should not exceed the
costs agreed upon by the parties payable to Teva on the redetermination. Teva
also seeks its costs in relation to the submissions made to resolve this issue.
[3]
Costs thrown away is described in paragraph 8 of
Caldwell v Caldwell, 2015 ONSC 7715: “The phrase
‘costs thrown away’ refers to a party’s costs for trial preparation which have
been wasted and will have to be re-done as a result of the adjournment of the
trial.”
[4]
Both parties agree that this Court has full
discretionary power to award costs: Rule 400(1) of the Federal Courts Rules,
SOR/98-106.
[5]
Having read the parties’ submissions, I agree
with Pfizer that it is reasonable that it be awarded its costs thrown away
within the two week period preceding the date the Court ordered the adjournment
of the redetermination hearing. I also agree with Teva that some of the work
done in that two week period might have been of use when preparing for the
actual redetermination hearing. However, given that seven months elapsed from
the original redetermination hearing to the rescheduled redetermination hearing,
I accept that most of the earlier preparation work was likely of little value
when counsel came to prepare again. It was evident to me from the most able
submissions of counsel at the redetermination hearing that the file was fresh
in his mind.
[6]
I agree with the submission of Teva, that the
authorities relied on by Pfizer in support of its request for full indemnity,
being cases from the Ontario courts, are of little assistance to me in deciding
the matter here. Such an award of costs is not in keeping with this Court’s
jurisprudence. I find that Teva’s actions that led to the adjournment of the
earlier hearing date do not come close to being reprehensible, scandalous or
outrageous conduct that might justify an award of full indemnity: see Blackmore
v Canada, 2011 FCA 335 at para 3. It was only as a result of Teva failing
to inform the Court and Pfizer as soon as it received instructions to seek
leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of
Canada, that Pfizer was awarded its thrown away costs.
[7]
I fail to see any basis for departing from the
usual order of the Court on costs in patent litigation. Pfizer will be
entitled to its costs incurred in the two week period ending on August 31,
2016, preparing for the redetermination hearing, assessed at the upper end of Column
IV of Tariff B. Pfizer is also entitled to recover any disbursements thrown
away.
[8]
Each party shall bear its own costs with respect
to submissions made on this matter.
JUDGMENT IN T-1844-17
This Court’s
JUDGMENT IS that: the
Defendant is entitled to its costs incurred in the two week period ending on
August 31, 2016, in preparing for the redetermination hearing, assessed at the
upper end of Column IV of Tariff B, and any disbursements thrown away, and
there are no costs awarded with respect to submissions made on this matter.
"Russel W. Zinn"
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET:
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T-1844-07
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STYLE OF CAUSE:
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TEVA CANADA LIMITED v PFIZER INC
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MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCES OF THE PARTIES
JUDGMENT
AND REASONS:
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ZINN J.
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DATED:
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JUNE 20, 2017
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WRITTEN REPRESENTATIONS BY:
David W. Aitken
Marcus Klee
Devin Doyle
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For
The plaintiff
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Peter Wilcox
Stephanie Anderson
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For The defendant
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SOLICITORS OF RECORD:
Aitken Klee LLP
Barristers and Solicitors
Ottawa, Ontario
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For The plaintiff
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Belmore Neidrauer LLP
Barristers and Solicitors
Toronto, Ontario
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For
The defendant
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