Date: 20060601
Docket: T-1470-99
Citation: 2006 FC 678
BETWEEN:
NOVOPHARM LIMITED
Applicant
and
ASTRAZENECA AB and
THE REGISTRAR OF TRADEMARKS
Respondents
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] A copy of these reasons is filed today in Court file T-1471-99 and applies there accordingly.
[2] This is an assessment of costs pursuant to a decision of the Federal Court dated October 17, 2003 from two decisions of the Registrar of Trade-marks dated June 14, 1999 regarding Oppositions by Novopharm Limited (hereafter the "Novopharm Applicant") to Trade-mark Application Nos. 699,917 and 699,918 filed by AstraZeneca AB (hereafter the "AstraZeneca Respondent"). The Federal Court allowed the appeals from decisions of the Registrar of Trade-marks and granted the Novopharm Applicant's oppositions. In addition, the Federal Court ordered the AstraZeneca Respondent to pay the Novopharm Applicant its costs for "all proceedings in the Trial Division. If not agreed, such costs shall be assessed on the basis of the high end of column III to Tariff B of the Federal Court Rules, 1998".
[3] The Novopharm Applicant filed a motion on December 22, 2003 pursuant to Rule 403 of the Federal Courts Rules which states:
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).
More specifically, the Novopharm Applicant sought directions from the Federal Court relating to offers to settle and additional Items according to Tariff B (assessable service Item 14 (Counsel fee: (a) to first counsel, per hour in Court; and (b) to second counsel, where the Court directs, 50% of the amount calculated under paragraph (a).), Item 24 (Travel by counsel to attend a trial, hearing, motion, examination or analogous procedure, at the discretion of the Court.) and Item 27 (Such other services as may be allowed by the assessment officer or ordered by the Court.)). On January 21, 2004, the Federal Court granted Novopharm Applicant's motion in part for Item 14 (b) of Tariff by ordering that the Novopharm Applicant was entitled to counsel fees of second counsel, in the amount of 50% of the amount assessed in respect of first counsel. In addition, regarding Item 24 of Tariff B, the Federal Court ordered that the Novopharm Applicant be allowed counsel fees for travel to Montreal for the cross-examination of Mr. Lackman as well as second counsel fees in respect of preparation for the hearings of May 9, 2001 and June 9 and 10, 2001 which should not exceed 50% of the amount allowed lead counsel for preparation.
[4] The Applicant requested a Notice of Appointment for Assessment on January 18, 2005 and filed its Bill of Costs that same day.
[5] The parties were contacted by the Toronto Registry regarding a draft timetable and a tentative appointment date for the assessment of this Bill of Costs. However, the parties indicated they were in settlement negotiations and did not require a timetable for the filing of materials or an appointment date. In fact, the parties indicated they would periodically inform the Toronto Assessment Officer by letter as to any progress on settling this Bill of Costs. On August 3, 2005, the parties informed the Toronto Assessment Officer that they were unable to settle this matter and renewed their request for an appointment for the assessment of costs and provided a draft timetable for the filing of assessment materials.
[6] On August 11, 2005, I issued a timetable for the filing of all materials and scheduled a time, date and place for the oral hearing of this assessment of costs. The parties filed all of their respective materials within the timeframes that were provided. After a number of adjournments, the oral hearing of this matter took place on December 16, 2005 in Toronto and I reserved my decision at that time.
Assessment
Costs at the High-End of Column III
[7] In my opinion, it is appropriate that I deal first with the issue of the AstraZeneca Respondent's request that I allow costs at the high-end of Tariff B and not at the highest end which the Novopharm Applicant is presently claiming in its Bill of Costs. The Order of the Federal Court dated October 17, 2003 states:
3. The respondent AstraZeneca shall pay to the applicant its costs for all proceedings in the Trial Division. If not agreed, such costs shall be assessed on the basis of the high-end of column III to Tariff B of the Federal Court Rules, 1998.
[Emphasis added]
[8] The AstraZeneca Respondent made submissions that the Federal Court could have ordered costs at the highest end of Column III of Tariff B but only ordered costs on the basis of the "high-end". As an example of judicial instructions, the AstraZeneca Respondent notes the decision in Boots v. Mohawk Council of Akwesasne, [2000] F.C.J. No.312 (TO), para.3 which states:
3. On March 18, 1999 an Order of the Court dismissed the main action without costs. Judgment was granted with respect to the counterclaim, however, and the Court directed the Plaintiff Ronnie Boots pay the Defendant's costs (Plaintiff-by-Counterclaim) on the counterclaim, to be assessed in accordance with the highest number of units under Column V of Tariff B of the Federal Court Rules, 1998. The Defendant (Plaintiff-by-Counterclaim) filed its Bill of Costs on July 8, 1999 seeking a total of $35,099.12 for fees and disbursements. An Appointment issued and the assessment took place before me at Ottawa on September 29, 1999.
[Emphasis added]
[9] In Boots, supra the Court did specify the actual word "highest" which outlined the unit amount that the presiding Judge determined was appropriate for the assessable services. In this proceeding, as I outlined above in the Order of the Federal Court dated October 17, 2003, the Federal Court ordered costs on the basis of the "high-end" of Column III which is the specified unit amount that this individual Judge determined was appropriate unit value for these associated assessable services. I note that the intent of both decisions mentioned in paragraphs [7] and [8] above was to give directions to the parties claiming costs. It is almost trite to state the obvious that all Court members bring different styles of writing to their respective decisions. The nuances or shades of meaning for the word "high-end" are very subtle and although the Federal Court in this proceeding did not use the word "highest", it is my opinion that the wording of the Order of the Federal Court conveyed the Judge's intentions regarding appropriate unit level to be used for this Bill of Costs. For these reasons, it is my opinion that the Novopharm Applicant has complied with the intent of the Order of the Federal Court and I exercise my discretion as an Assessment Officer and allow the Novopharm Applicant to claim the maximum units of Column III for the assessable services items requested in its Bill of Costs.
Offers to Settle and Double Costs
[10] The Novopharm Applicant submits that they should be entitled to double costs for certain assessable services for making two separate offers to settle these proceedings which were not accepted by the AstraZeneca Respondent. In support of this submission, the Novopharm Applicant refers to Rule 400(1) of the Federal Courts Rules which states:
400. (1) Discretionary powers of the Court - The Court shall have full discretionary powers over the amount and allocation of costs and the determination of by whom they are to be paid.
The Novopharm Applicant notes that it obtained a judgment that was more favourable than its offers and refers to Rule 420 of the Federal Courts Rules which states:
420. (1) Consequences of failure to accept plaintiff's offer - Unless otherwise ordered by the Court, where a plaintiff makes a written offer to settle that is not revoked, and obtains a judgment as favourable or more favourable than the terms of the offer to settle, the plaintiff shall be entitled to party-and-party costs to the date of service of the offer and double such costs, excluding disbursements after that date.
(2) Consequences of failure to accept defendant's offer - Unless otherwise ordered by the Court, where a plaintiff makes a written offer to settle that is not revoked,
(a) if the plaintiff obtains a judgment less favourable than the terms of the offer to settle, the plaintiff shall be entitled to party-and-party costs to the date of the service of the offer and the defendant shall be entitled to double such costs, excluding disbursements, from that date to the date of judgment; or
(b) if the plaintiff fails to obtain judgment, the defendant shall be entitled to party-and-party costs to the date of the service of the offer and to double such costs, excluding disbursements, from the date of judgment.
In support of this request for the doubling of costs, the Novopharm Applicant has referred to specific case law such as Fehergard Products Ltd. v. Rocky's of B.C. Leisure Ltd., [1994] F.C.J. No. 2012 (TO), Canadian Olympic Assn. v. Olymel, Societe en Commandite (2000), 8 C.P.R. (4th) 429 (F.C.T.D.), Monsanto Canada Inc. v. Schmeiser (2002), 19 C.P.R. (F.C.T.D.) and Kirgan Holding S.A. v. Panamax Leader (The), [2003] F.C.J. No. 124. Since the Novopharm Applicant's offers were not revoked, the Novopharm Applicant requests that it be awarded double costs as allowed by Federal Courts Rules that are outlined in this paragraph.
[11] In addition to the submissions above in paragraph [10], the Novopharm Applicant submits that it is entitled to be awarded double costs by the Assessment Officer under Rule 420 since the Order of the Federal Court dated January 21, 2004 states that the decision was given under authority pursuant to Rule 403(1) which only specifically enumerates issues under Rule 400. One of the issues itemized within Rule 400 is the "offer to settle" which the Novopharm Applicant submits does not limit the Assessment Officer from awarding double costs under Rule 420. The Novopharm Applicant refers to AstraZeneca AB v. Novopharm Ltd., [2004] F.C.J. No. 1196 (TO) to support this latter submission. Finally, the Novopharm Applicant submits that "This leaves the Assessment Officer with full discretion to order a doubling of costs under Rule 420, should the Assessment Officer determine the two offers to settle made by Novopharm in this case comply with Rule 420".
[12] The AstraZeneca Respondent submits that the Novopharm Applicant is not entitled to double costs since the two offers were revoked according to their terms. The phrase or term referred to in each offer was "This offer will remain open until two minutes after the commencement of the hearing..." The AstraZeneca Respondent argues that each offer was revoked once the respective hearings commenced. In support of this submission, the AstraZeneca Respondent refers to specific case law such as Monsanto Canada Inc. v. Schmeiser (2002), 19 C.P.R. (4th) 524 (F.C.T.D.) and Francosteel Canada Inc. v. African Cape (The) (C.A.) [2003], 4 F.C. 284. In addition to these latter submissions, the AstraZeneca Respondent submits that the Novapharm Applicant's offers to settle did not constitute a legitimate compromise and without an element of compromise there can be no offer to settle and therefore, no doubling of costs. The AstraZeneca Respondent refers to Canadian Olympic Assn. v. Olymel, Societe en Commandite (2000), 8 C.P.R. (4th) 429 (F.C.T.D.) in support of this representation.
[13] The AstraZeneca Respondent refers to the Order of the Federal Court dated January 21, 2004, in which it submits the Federal Court dealt with the issue of lack of compromise with respect to both the offers to settle made by the Novopharm Applicant. The AstraZeneca Respondent submits that since the Federal Court has already decided the issue of lack of compromise on the same facts involving the same parties, therefore, the doctrine of res judicata applies. Simply put, the Federal Court has dealt with this specific issue in its decision and therefore, it is not appropriate that this issue be dealt with again.
[14] The Novopharm Applicant's Motion for Directions dated November 17, 2003 sought specific relief which was:
(i) for double , or some other multiple of costs (excluding disbursements) incurred from
(1) April 9, 2001 to June 12, 2001; and
(2) February 13, 2003 to October 17, 2003 in respect of offers to settle made by the Applicant, Novopharm Limited ("Novopharm");
[15] The Order of the Federal Court dated January 21, 2004 specifically dealt with this relief sought by the Novopharm Applicant regarding both its offers to settle in its order dated January 21, 2004 when it stated:
Turning to the first offer, at the time it was made by Novopharm on April 9, 2001 AstraZeneca's applications for trade-mark registration had been outstanding since February 28, 1992. On June 14, 1999, the Trade-marks Opposition Board had rejected Novopharm's opposition. The appeals in this Court were scheduled to be heard on May 9, 2001. Without doubt AstraZeneca had by then expended significant monies from the time it filed its trade-marks applications. The April 9 offer may, in my view, fairly be seen as a last minute offer by which Novopharm afforded AstraZeneca the opportunity to give up its trade-mark applications in exchange for avoiding the costs of the Federal Court appeal proceedings. In the words of Mr. Justice Lemieux, it was a request that AstraZeneca capitulate a position that was certainly arguable and which was initially successful in this Court. While AstraZeneca was ultimately unsuccessful in the Court of Appeal this was largely as a result of jurisprudence delivered after the initial offer from Novopharm.
I find, therefore, the first offer contained no element of compromise and was an effort to obtain double costs.
Circumstances had, however, changed somewhat by February 13, 2003 when the second offer to settle was made by Novopharm. On February 4, 2003, the Federal Court of Appeal had rendered its decision in AstraZeneca AB v. Novopharm Limited, 2003 FCA 57 with respect to the refusal of AstraZeneca's application for registration of a yellow tablet design as a trade-mark in respect of PLENDIL. This decision cast a long shadow over the pending redetermination of these appeals. Novopharm argues that because of the similarity in the evidence and issues in the yellow PLENDIL case to the evidence and issues in these appeals, its second February 13, 2003 offer to forego costs in this Court did contain a genuine element of compromise.
While at first glance an attractive argument, by June 9, 2003 when the second offer expired AstraZeneca had filed an application for leave to appeal the yellow PLENDIL decision to the Supreme Court of Canada. In my view, the interest of both Novopharm and AstraZeneca transcended the present two appeals. Both had a significant and overriding interest in the development of jurisprudence as to when, if at all, the shape and colour of a pill would be sufficient to support registration of a trade-mark.
I conclude, therefore, that the second offer was not made for the purpose of genuinely endeavouring to settle the pending appeals and it did not advance the purpose sought to be achieved by the offer to settle provision of the Rules. Rather, the offer was again made for the purpose of claiming double costs if the appeals were successful.
It follows that no direction will issue for double, or some other multiple of costs.
[Emphasis added]
[16] Black's Law Dictionary 8th Edition, 2004, (Thompson West Publishing Co.) defines the phrase res judicata:
res judicata (rays-joo-di-kay-te.) [Latin "a thing adjudicated"]
1. An issue that has been definitely settled by judicial decision. ...
In my view, it is obvious to me that the definition of res judicata should be considered and applied regarding the issue of doubling of costs in these specific circumstances. The Novopharm Applicant in its submissions in support of its Motion for Directions pursuant to Rule 403 of the Federal Courts Rules makes specific reference to Rule 420 and the issue of doubling of costs. Notwithstanding the Novopharm Applicant's extensive submissions on this issue, it is my opinion that the Novopharm Applicant's request for the doubling of costs outlined above in paragraph [14] regarding Rule 420 of the Federal Courts Rules has been settled by the Order of the Federal Court dated January 21, 2003 which is outlined and underlined [Emphasis added] in the previous paragraph. Therefore, for these reasons, the doubling of costs for the time frames from April 9, 2001 to June 12, 2001 and February 13, 2003 to October 17, 2003, in respect of offers to settle made by the Novopharm Applicant, are disallowed.
Entitlement for Costs Assessed for both T-1470-99 and T-1471-99
[17] The Novopharm Applicant is seeking costs for both T-1470-99 and T-1471-99 and submits that the proceedings were distinct from one another. The Novopharm Applicant submits that the two proceedings involved two separate trade-marks and evidence was required in respect of each trade-mark. In addition, the Novopharm Applicant submits that the AstraZeneca Respondent recognized that there were different matters at issue in both these proceedings, since it initially decided to continue with the appeal with respect to only the proceeding in T-1470-99. The Novopharm Applicant notes that it had agreed to pay a lump sum for the costs for the first hearing which the AstraZeneca Respondent had calculated in its draft bill of costs based on separate costs for each proceeding.
[18] As an initial submission at paragraph 16 of the Written Representations of the Respondent, the AstraZeneca Respondent submits that "...it is wholly inappropriate for Novopharm to refer to previous "without prejudice" settlement discussions between the parties and therefore, AstraZeneca submits that the without prejudice communications included in Novopharm's record should be disregarded." The AstraZeneca Respondent submits, with the exception of Item 1 (Preparation and filing of originating documents, other than a Notice of Appeal, and application records.), that it is clear that a litigant may assess separate costs for each proceeding unless there are services common to all and therefore, in that situation, multiple indemnifications would be inappropriate. The AstraZeneca Respondent submits, with regards to the assessable services such as appearance on a motion, preparation for cross-examination and attendance at a conference, that there was a single service with respect to both files. The AstraZeneca Respondent supports this submission by making reference to Caricline Ventures Ltd. v. ZZTY Holdings Limited and Azim Zone Inc., [2002] FCT 1134 (TO) at paragraph 21:
Consistent with the observation of the trial Judge in paragraph [10] of his May 15, 2002 directions for costs, I do not think that these matters were particularly complex or that they raised novel issues of law. Importance as a factor in costs is relative and should not be discounted simply because litigation may be significant only for its particular parties. My impression, based on the record and the unfolding before me of this assessment of costs, including a teleconference in advance to set parameters for the exchange of materials, is that these litigants may have had general difficulties in dealing with one another in turn possibly inducing higher costs than normal. Regardless, the practice is that, unless the Court specifically restricts a successful litigant to a single set of costs for multiple proceedings, such as in Bertha L'Hirondelle et al. v. Her Majesty the Queen, [2002] F.C.J. No. 1426, 2002 FCA 367, that litigant may assess separate costs for each proceeding unless there are services common to all and clearly inappropriate, as here for trial preparation and appearance, for multiple indemnification. I agree that the record establishes difficulties on the part of the Defendants (which I do not attribute to their counsel) in moving this litigation forward. Therefore, I allowed fee items as presented except where I felt adjustments were warranted. There is no principle of costs mandating the mid-point of ranges in the absence of an express direction of the Court to do so.
[Emphasis added]
[19] The AstraZeneca Respondent refers to the Order of the Federal Court dated June 12, 2001 regarding these "separate" applications of the Novopharm Applicant during the first hearing of these proceedings:
...counsel for both parties argued the applications together upon the records filed in each proceeding. Most of the evidence was identical. As the matters were argued together, I am issuing one set of reasons applicable to both proceedings.
The AstraZeneca Respondent submits that this statement by the Federal Court supports their submission that there is no justification for including costs for both files with the exception of Item 1 (Preparation and filing of originating documents, other than a notice of appeal to the Federal Court of Appeal, and application records) which I have mentioned above in paragraph [18].
[20] I have reviewed the Court files in these proceedings and I am of the opinion that a number of the assessable services that have been claimed were common to both proceedings which is a consideration that is expressed in Caricline Ventures Ltd., supra above. In addition, I have noted the submissions of the AstraZeneca Respondent regarding the Order of the Federal Court dated June 21, 2001 and further noted that during the second hearing these applications were, in fact, heard together and argued on almost identical evidence. However, these proceedings did involve voluminous evidence and authorities which, pursuant to the Federal Courts Rules, had to be filed in each proceeding. In addition, for the assessable services that were common to both proceedings, I must avoid duplication and over-payment where only one set of costs is appropriate. For these reasons, unless I determine specific exceptions for certain costs or where specifically ordered by the Court in its decision dated January 21, 2003, the Novopharm Applicant's request for costs entitlements for both files is allowed.
Entitlement to Second Counsel Fees
[21] The Novopharm Applicant in its Written Submissions (Costs Assessment) at paragraph 39 submits that the Federal Court in its order dated January 21, 2004 "...specifically reserved the right for Novopharm to claim second counsel fees." In addition, the Novopharm Applicant states that "...the Assessment Officer has the discretion to award second counsel fees and Novopharm submits that the Assessment Officer ought to award fees for its second counsel." The Novopharm Applicant points to the wording of the Federal Court Order mentioned in this paragraph and notes that the Federal Court had "no hesitation" in awarding second counsel fees pursuant to Item 14 (Counsel Fees: (b) to second counsel, where the Court directs, 50% of the amount calculated under Item 14 (Counsel fees: (a) to first counsel, per hour in Court;). The Novopharm Applicant further notes the Federal Court ordered second counsel fees with respect to certain tasks listed under Item 27 (Such other services as may be allowed by the assessment officer or ordered by the Court.) as well as second counsel fees for the preparation by second counsel for the May 9, 2001 and the June 9 and 10, 2003 hearings.
[22] The Novopharm Applicant submits that it is entitled to second counsel fees for other assessable services, specifically, Item 1 (Preparation and filing of originating documents, other than a notice of appeal to the Federal Court of Appeal, and application records.), Item 5 (Preparation and filing of a contested motion, including responses thereto.), Item 8 (Preparation for an examination, including examination for discovery, on affidavits, and in aid of execution.), Item 10 (Preparation for conference, including memorandum.), Item 13 (Counsel fee: (a) preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff; and (b) preparation for trial or hearing per day, in Court after the first day.), Item 14 (Counsel fee: (a) to first counsel, per hour in Court; and (b) to second counsel, where the Court directs, 50% of the amount calculated under paragraph (a).), Item 26 (Assessment of Costs.) and Item 27 (Such other services as may be allowed by the assessment officer or ordered by the Court.). In AstraZeneca AB v. Novopharm Ltd. (2002), 18 C.P.R. (4th) 88 (F.C.T.D.), para.15, the Novopharm Applicant notes the Federal Court allowed the successful party fees for both senior and junior counsel. The Novopharm Applicant justifies this request for second counsel fees by submitting that its Bill of Costs is consistent with the amount of work that was required for these files. In addition, the Novopharm Applicant notes that several counsel were involved in all aspects of the litigation in respect of both T-1470-99 and T-1471-99 proceedings, especially with regard to the expert affidavits testimony of the physicians and pharmacists that were required for each proceeding.
[23] The AstraZeneca Respondent submits that the Novopharm Applicant's original Bill of Costs of $109,520.44 was filed January 18, 2005 but the Revised Bill of Costs in the Novopharm Applicant's Costs Assessment Brief claimed a total cost of $131,177.24. The AstraZeneca Respondent points out that an examination of these two Bills of Costs revealed that the Novopharm Applicant added second counsel fees for most items, including items for assessable services that were specifically denied by the Order of the Federal Court dated January 21, 2004. Relying on Picott, Re, 2003 FCT 218, the AstraZeneca Respondent submits that this precedent supports the proposition that second counsel fees cannot be claimed except where the Court specifically allows them. Therefore, the Novopharm Applicant should not be entitled to second counsel fees for Items 1, 5, 8, 10 and 26.
[24] The AstraZeneca Respondent submits that the Novopharm Applicant did not seek direction under Rule 403 of the Federal Courts Rules with respect to second counsel fees in its Amended Bill of Costs for Items 5, 10 and 26 and therefore, without an Order of the Federal Court, it is submitted that the Novopharm Applicant is not entitled to those costs. The Order of the Federal Court dated January 21, 2004 specifically states:
1. The assessment officer is directed to determine the costs awarded to Novopharm on the following criteria which are additional to my original ruling that costs are to be assessed on the basis of the high-end of Column III to Tariff B of the Rules:
i) Novopharm is entitled, to pursuant to items 14(b) of Tariff B, to counsel fees of one second counsel in the amount of 50% of the amount assessed in respect of first counsel;
ii) Novopharm is entitled, to pursuant to item 24 of the Tariff B, to a
counsel fee for travel to Montreal for the cross-examination of Mr. Lackman. The assessment officer has full discretion with respect to the number of units to be assessed and whether this was a service common to both appeals so that only a single set of costs should be awarded;
iii) Novopharm is not entitled to have a second counsel fee in respect of preparing for the cross-examination of the witnesses Chabursky, Andonoff, Lackman or Perlin, and is not entitled to a second counsel fee for the attendance on the cross-examination of the witnesses Andonoff and Perlin;
iv) Novopharm is entitled to a second counsel fee in respect of amount of such counsel fees is in the discretion of the assessment officer, but such counsel fees should not exceed 50% of the amount allowed to lead counsel for preparation;
v) Novopharm is not entitled to pre-judgment interest; and
vi) Novopharm is entitled to post judgment interest on the award of costs and disbursements, such interest to run from one month after the costs and disbursements are assessed by the assessment officer. The assessment officer shall ascertain what the applicable "post-judgment interest rate" is, as defined by section 127(1) of the Courts of Justice Act.
2. No costs are awarded in respect of this motion for directions.
[25] The Order of the Federal Court dated January 21, 2004 which partially outlined above in paragraph [24], allows second counsel fees for specific assessable service under Item 14 (b)and second counsel fees relating to the preparation for the hearing of the matter under Item 13 (b) or Item 27 (j) and (k). The Federal Court has indicated in the decision that it declined to give such an Order allowing second counsel fees for certain assessable services. It should be noted that the same decision allowed the Novopharm Applicant the "without prejudice" right to request second counsel fees from the assessing officer. One of my considerations in assessing these costs is the fact that a party that is successful in a proceeding can never be fully recover all their respective litigation costs. In support of this principle, I refer to Apotex v. Wellcome Foundation, [1998] F.C.J. No. 1736 at paragraph 7, where the Federal Court states:
An important principle underlying costs is that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party.
Considering both Picott, supra and Apotex, supra above, I am of the opinion, that unless the Federal Court has ordered second counsel fees for specific services requested in these proceedings, it is not appropriate that I allow second counsel fees for every assessable service itemized. In my mind and with regard to the special circumstances of these proceedings, this would be a duplication of fees or an over-payment of fees which is clearly not appropriate in any assessment of costs.
[26] I have reviewed all the materials in the record including the specific case law advanced by the parties in support of their submissions and I have summarized and those issues which are relevant for the disposition of this assessment.
[27] The Novopharm Applicant has made multiple requests under Tariff B, Item 1 (Preparation and filing of originating documents, other than a notice of appeal to the Federal Court of Appeal, and application records.) for specific documents for the T-1470-99 and T-1471-99 proceedings. The Item 1 multiple requests, as itemized by the Novopharm Applicant, include (a) Notice of Application, (b) Applicant's Record, (c) Supplementary Record (April 30, 2003), (d) Affidavit of Andrew Chabursky, (e) Affidavit of Susan Malcolm-Reid, (f) Affidavit of John Andonoff,
(g) Affidavit of Philip Lackman and (h) Affidavit of Shawna Perlin. In addition, the Novopharm Applicant has requested the maximum unit values as well as second counsel fees for each of its Item 1 assessable services, (a) through to (h). In Bruce Starlight et al. v Her Majesty the Queen, [2001] F.C.J. 1376 (TO), the Taxing Officerdescribed in paragraph [7], the purpose for the items enumerated in Tariff B of the Federal Courts Rules, when claiming for respective assessable services:
The structure of the Tariff embodies partial indemnity by a list of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing a synthesizing of issues leaving relatively straightforward issues for trial.
[28] Different types of proceedings such as Actions or Judicial Reviews in the Federal Court are perfected by different procedural steps which are outlined by the Federal Courts Rules. At paragraph 6 of Kassam v. R. [2005] F.C.J. No. 799, the Taxing Officer refers to "...a single global allowance for the associated services." In my opinion, the Novopharm Applicant has made multiple requests for assessable services under Item 1 which are, in fact, captured within the Novopharm Applicant's perfected Application Record. I must bear in mind my previous decisions regarding Entitlement for Costs Assessed for both T-1470-99 and T-1471-99only where appropriate and Entitlement to Second Counsel Fees only where the Federal Court has directed that they be allowed. For the reasons outlined previously regarding these two issues, I disallow the requested assessable services associated second counsel fees and fees for both proceedings. Finally, I am of the opinion that the assessable services requested for Item 1 which include (a) Notice of Application, (b) Applicant's Record, (d) Affidavit of Andrew Chabursky, (e) Affidavit of Susan Malcolm-Reid, (f) Affidavit of John Andonoff, (g) Affidavit of Philip Lackman and (h) Affidavit of Shawna Perlin are for a single service as outlined in Kassam, supra above. For greater clarity, I do not wish to allow a duplication of fees or an over-payment of fees which is clearly not appropriate in any assessment of costs. Therefore, I will allow the maximum 7 units for each of the proceedings T-1470-99 and T-1471-99 for a total of 14 units ($1,540.00).
[29] The remaining Item 1, (c) Supplementary Record (April 30, 2003), as listed by the Novopharm Applicant has to be considered a separate and exceptional assessable service since the need for it arose as a result of the Federal Court of Appeal decision dated October 15, 2002 allowing the appeal in this matter and remitting the matters back to the Federal Court. The Federal Court gave Directions on November 4, 2002 regarding the matters being re-scheduled, re-heard and the filing of materials for the new hearing. The Directions of the Federal Court dated November 4, 2002 indicated the Novopharm Applicant may file a Supplementary Record of Evidence in respect of both proceedings prior to the second hearing date which was to be set by the Judicial Administrator. Accordingly, the Novopharm Applicant filed this document within the timeframes. I am of the opinion that this additional assessable service itemized under Item 1 as "(c) Supplementary Record (April 30, 2003)" was appropriate and necessary for the second hearing of this matter. Therefore, I allow the 7 units ($770.00) only for this assessable service for both proceedings.
[30] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for Item 5 (Preparation and filing of a contested motion, including materials and responses thereto.) and Item 6 (Appearance on a motion, per hour.). For the reasons I have outlined above in paragraphs [20] and [25] regarding the issue of costs for both proceedings and second counsel fees, I am of the opinion these two items were specific assessable services that were common to both proceedings. In addition, I note that there is no Order of the Federal Court allowing second counsel fees for Item 5 and Item 6. For greater clarity, I do not wish to allow a duplication of fees or an over-payment of fees which is clearly not appropriate in any assessment of costs. For these reasons, I only allow the unit value of 7 units and 7.5 units, respectfully for Item 5 and Item 6 for a total of 14.5 units ($1,595.00) for both proceedings.
[31] The Novopharm Applicant has requested costs for both proceedings, as well as second counsel fees for the Novopharm Applicant's Item 8 (a) Preparation for cross-examination of affidavit of Andrew Chabursky, (b) Preparation for cross-examination of affidavit of John Andonoff, (c) Preparation for cross-examination of affidavit of Philip Lackman and (d) Preparation for cross-examination of affidavit of Shawna and Item 9 (a) Attending on examination of Andrew Chabursky, per hour and (b) Attending on examination of John Adonoff, per hour, (c) Attending on examination of Shawna Perlin, per hour and (d) Attending on examination of Philip Lackman, per hour. The Order of the Federal Court dated January 21, 2004 specifically denied "... a second counsel fee in respect of preparing for the cross-examination of the witnesses Chabursky, Andonoff, Lackman or Perlin ..." and "... a second counsel for the attendance on the cross-examination of the witnesses Adonoff and Perlin." For the reasons I have outlined above in paragraphs [20] and [25] regarding the issues of costs for both proceedings as well as second counsel fees, I am of the opinion these two items were specific assessable services that were common to both proceedings. In addition, I must comply with the Order of the Federal Court which specifically denied or gave no direction with regard to second counsel fees. I also note that the AstraZeneca Respondent indicates in paragraph 31 of its Written Representations that the fees requested for Item 9 are "acceptable" notwithstanding, it is submitted, that they should be for one proceeding only. For greater clarity, I do not wish to allow a duplication of fees or an over-payment of fees which is clearly not appropriate in any assessment of costs. For these reasons, I only allow the unit value for the Novopharm Applicant's Items 8 (a), (b), (c) and (d) at 5 units ($550.00), 5 units ($550.00), 5 units ($550.00) and 5 units ($550.00) for both proceedings. For the same reasons, I only allow the following amounts for Item 9 (a), (b), (c) and (d) at $1,287.00, $231.00, $792.00 and $1,650.00 for a total of $6,160.00 for both proceedings.
[32] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for its Item 10 (a) Preparation for conference including memorandum: AstraZeneca's request for adjournment (teleconference April 30, 2003), (b) Preparation of Response to October 21, 2002 Directions regarding filing additional evidence and/or argument as well as its Item 11, Attendance at conference, per hour: AstraZeneca's request for adjournment (teleconference April 30, 2003. For the reasons I have outlined above in paragraphs [20] and [25] regarding the issue of costs for both proceedings and second counsel fees, I am of the opinion these two items were specific assessable services that were common to both proceedings. In addition, I note that there is no Order of the Federal Court allowing second counsel fees for Item 10 and Item 11. For greater clarity, I do not wish to allow a duplication of fees or an over-payment of fees which is clearly not appropriate in any assessment of costs. For these reasons, I only allow the unit value of 6 units, 6 units, and 1.5 units respectfully for the Novopharm Applicant's Item 10 (a), (b) and Item 11 for a total of 13.5 units ($1,485.00) for both proceedings.
[33] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for its Item 13 (A. Counsel fee: re: hearing on May 9, 2001), (B. Counsel fee: re: hearing on June 9 and 10, 2003) and (C. Counsel fee: re: hearing on June 9 and 10, 2003). These assessable services are requested by the Novopharm Applicant for the preparation for hearing by first and second counsel. In addition, the Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for its Item 14 (A. Counsel fee: re: hearing on May 9, 2001 (a) to first counsel, per hour in Court), (A. Counsel Fee: re: hearing on May 9, 2001 (b) to second counsel, as directed by Order, 50% of the amount calculated under paragraph (a)), (B. Counsel fee: re: hearing on June 9 and 10, 2003 (a) to first counsel, per hour in Court) and
(B. Counsel fee: re: hearing on June 9 and 10, 2003 (b) to second counsel, as directed by Order, 50% of the amount calculated under paragraph (a)). For the reasons I have outlined above in paragraph [20] regarding the issue of costs for both proceedings, I am of the opinion these were specific assessable services that were common to both proceedings and therefore, the fees claimed for both proceedings are disallowed. However, the Order of the Federal Court dated January 21, 2004, as partially outlined above in paragraph [24], specifically allowed second counsel fees with certain conditions for all the assessable services itemized above. Bearing in mind the above mentioned decision for all of the Novopharm Applicant's assessable services claimed as Item 13 as described in the first two lines of this paragraph, I only allow 5 units ($550.00), 2.5 units ($275.00), 5 units ($550.00), 2.5 units ($275.00), 5 units ($550.00) and 2.5 units ($275.00) for both proceedings. Similarly for the Novopharm Applicant's Item 14, I only allow the amounts of $2,310.00, $$1,155.00, $3,300.00 and $1,650.00 for both proceedings. Therefore, the total amount allowed for Item 13 and Item 14 is $10,890.00 for both proceedings.
[34] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for Item 15 (Preparation and filing of written argument, where requested or permitted by the Court.). This assessable service has been claimed twice in the Bill of Costs which I assume is for each of the two hearings of this matter. I disallow the first Item 15 claimed by the Novopharm Applicant since, in my opinion, the sentiment expressed in Kassam, supra also applies in these specific circumstances. In addition, I note that the first Memorandum of Fact and Law was originally accounted for when I allowed the assessable services for Item 1 in paragraph [28] above.
[35] I am of the opinion that the Federal Court in its Directions dated November 4, 2002 gave leave to the parties to file the second Memorandum of Fact and Law to be used at the second hearing of this matter. Item 15 contains the phrase "... where requested or permitted by the Court" and it is obvious to me that the Federal Court Directions allowed this second document to be filed. I have already allowed second counsel fees for the Novopharm Applicant's Item 13 as outlined above in paragraph [33] and there is no Order of the Federal Court allowing a second counsel fee for this assessable service. In addition, I am of the opinion that the second Memorandum of Fact and Law was a specific assessable service that was common to both proceedings. For greater clarity, I do not wish to allow a duplication of fees or an over-payment of fees which is clearly not appropriate in any assessment of costs. For these reasons, I only allow 7 units ($770.00) only for this assessable service for both proceedings.
[36] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for its Item 24 (Travel by counsel to Montreal, Quebec for cross-examination on affidavit of Philip Lackman, as directed by Order). I note the italicized phrase as described in the Novopharm Applicant's Bill of Costs and I also note the wording of the Order of the Federal Court dated January 21, 2004, as outlined above in Paragraph [24], which states that the "...assessment officer has full discretion with respect to the number of units to be assessed and whether this was a service common to both appeals so that only a single set of costs should be awarded;". There is no Order of the Federal Court allowing a second counsel fee for this assessable service and I am of the opinion that Item 24 was a specific assessable service that was common to both proceedings. For all of the reasons I have considered and outlined in this paragraph including my compliance to the Order of the Federal Court dated January 21, 2004, it is my opinion that it is appropriate that I exercise my discretion and only allow a single set of costs of 5 units ($550.00) for this assessable service for both proceedings.
[37] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for its Item 25 (Services after judgment not otherwise specified: briefing client regarding first judgment and consulting with client to determine whether to proceed with appeal to Court of Appeal), Item 25 (Services after judgment not otherwise specified: briefing client regarding second judgment and evaluation of likelihood of any appeal by Astra) and Item 26 (Assessment of costs (including preparation of Bill of Costs)). For the reasons I have outlined above in paragraphs [20] and [25] regarding the issue of costs for both proceedings and second counsel fees, I am of the opinion these three items were specific assessable services that were common to both proceedings. In addition, I note that there is no Order of the Federal Court allowing second counsel fees for these specific items. For greater clarity, I do not wish to allow a duplication of fees or an over-payment of fees which is clearly not appropriate in any assessment of costs. For these reasons, I only allow the unit value of 1 unit, 1 unit, and 6 units respectfully for these three assessable services for a total of 8 units ($880.00) for both proceedings.
[38] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for Item 27 (Such other services as may be allowed by the assessment officer or ordered by the Court). The Novopharm Applicant has enumerated this specific assessable service as Item 27 (a) to (l) inclusive. Items 27 (a) to (f) inclusive pertain to meetings and preparing affidavits of its affiants and meeting and contacting potential experts. Considering the sentiment expressed in Kassam, supra above, in my opinion, this assessable service is part of Item 1 which I have already addressed and this would clearly be a duplication of fees or an over-payment of fees. For these reasons, Items 27 (a) to (f) inclusive is disallowed.
[39] In addition to the Items 27 (a) to (f) inclusive that I have dealt with in paragraph [38] above, the Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for Item 27 (j) Preparation for hearing on May 9, 2001 by second counsel, not to exceed 50% of amount allowed for lead counsel, as directed by order, Item 27 (k) Preparation for hearing on June 9 and 10, 2003 by second counsel, not to exceed 50% of amount allowed for lead counsel, as directed by order and Item 27 (l) Preparing offers to settle are assessable services. Once again, I note the italicized phrase as described in the Novopharm Applicant's Bill of Costs. However, in my opinion, Item 27 (j) and Item 27 (k) are duplications of Item 13 which I have already dealt with and allowed in paragraph [33] above. Similarly, in my opinion, Item 27 (l) has been dealt by the Federal Court in its Order of January 21, 2004 when it denied the Novopharm Applicant's request for doubling of costs related to the 'offers to settle' letters. As outlined above in paragraph [15], the Order of the Federal Court determined that these two offers to settle were basically efforts to obtain double costs. In my opinion, it would be inappropriate to allow these assessable services since the Court has already determined the value of the correspondence based on what it determined was the intent of the 'offers to settle'. For these reasons, I disallow Items 27 (j), (k) and (l).
[40] The Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for its Item 28 (Services by clerks, at 50% of the amount that would be calculated for a solicitor:) (a) to (e) inclusive. The Novopharm Applicant's Item 28 (a) Preparing and Filing Applicant's evidence: obtaining exhibits (pill samples); conducting CPS Searches for pills, Item 28 (c) Preparing and filing materials for AstraZeneca's motion compelling Novopharm's affiants to re-attend cross-examination to answer further questions and Item 28 (e) File maintenance, including preparation of pleading briefs appear to me to be normal practices and procedures associated with the daily operating overhead of any law firm office. In my opinion, Items 28 (a), (c) and (e) are the normal cost of doing business in the field of litigation and it is not an appropriate that the AstraZeneca Respondent be responsible for normal office overhead expenses. For these reasons, I disallow Items 28 (a), (c) and (e).
[41] In addition to the Items 28 (a), (c) and (e) inclusive that I have dealt with in paragraph [40] above, the Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for Item 28 (b) Preparing and filing Applicant's supplementary record. In Tariff B of the Federal Courts Rules, Item 28 actually reads:
28. Services in a province by students-at-law, law clerks or paralegals that are of a nature that the law society of that province authorizes them to render, 50% of the amount calculated for a solicitor.
It is my opinion that services associated with Item 28 are done under the supervision of a solicitor which explains the amount to be claimed is at 50% of what a solicitor may claim. However, I note that the costs associated and claimed for the Supplementary Record (April 30, 2003) were allowed above in my paragraph [29]. If allowed again, this would, in effect, be a duplication of fees or an over-payment of fees which I obviously have attempted to avoid during the assessment of this Bill of costs. For these reasons, Item 28 (b) is disallowed.
[42] Finally, the Novopharm Applicant has requested costs for both proceedings as well as second counsel fees for its Item 28 (d) Preparing and filing materials to Astra's motion to amend style of cause. I believe this to be an assessable service that is reasonable in these circumstances and has been justified by the Novopharm Applicant. However, for the reasons I have outlined above in paragraphs [20] and [25] regarding the issue of costs for both proceedings and second counsel fees, I am of the opinion that Item 28 (b) was a specific assessable service that was common to both proceedings. In addition, I note that there is no Order of the Federal Court allowing second counsel fees for this specific item. Therefore, for all the reasons I have outlined in this paragraph, I only allow $220.00 only for Item 28 (b) for both proceedings.
[43] The Novopharm Applicant has claimed $3,967.98 for its in-house copies. The AtraZeneca Respondent has submitted, with regard to specific items that were photocopied, that Novopharm Applicant has claimed eight copies of certain documents. However, the AstaZeneca Respondent submits that only seven copies can be accounted for in the allocation of the same documents. In addition, the AstaZeneca Respondent has noted that the Novopharm Applicant should not be allowed to claim for colour photocopies that were submitted originally as black and white photocopies. The AstaZeneca Respondent also notes that the Novopharm Applicant's claim for "Remaining Copies" has not been justified and submits that it appears that an invoice for 3778 copies appears to be missing for some of the outside photocopying.
[44] I share the concerns of the AstaZeneca Respondent regarding the accounting of all the photocopies. However, I must turn to the decision in Grace M. Carlile v. Her Majesty the Queen, [1997] F.C.J. No. 885 (TO) at paragraph 26:
... Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. This presumes a subjective role for the Taxing Officer in the process of taxation. My Reasons dated November 2, 1994, in T-1422-90: Youssef Hanna Dableh v. Ontario Hydro cite, [1994] F.C.J. No. 1810, at page 4, a series of Reasons for Taxation shaping the approach to taxation of costs. Dableh was appealed but the appeal was dismissed with Reasons by the Associate Chief Justice dated April 7, 1995, [1995] F.C.J. No. 551. I have considered disbursements in these Bills of Costs in a manner consistent with these various decisions. Further, Phipson on Evidence, Fourteenth Edition (London: Sweet & Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars as the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donations of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd. ...
[45] The Novopharm Applicant has claimed the in-house photocopies at $.20 a page but has not accounted for all eight copies of certain documents. It is appropriate that I refer to Diversified Products Corp.v. Tye-Sil Corp. [1990] F.C.J. No.1056 (F.C.T.D.) wherein the Federal Court states:
With respect, I cannot agree with the reasoning of the Taxing Officer. The item of photocopies is an allowable disbursement only if it is essential to the conduct of the action. Therefore, this is intended to reimburse a party for the actual out-of-pocket cost of the photocopy. The $.25 charge by the office of Plaintiffs' counsel is an arbitrary charge and does not reflect the actual cost of the photocopy. A law office is not in the business of making a profit on its photocopy equipment. It must charge the actual cost and the party claiming such disbursements has the burden to satisfy the Taxing Officer as to the actual cost of the essential photocopies.
[46] In my opinion, the photocopy work done in-house and outside of the Novopharm Applicant's law firm was necessary for the conduct of these proceedings. However, in these circumstances, I think it is appropriate that I address the AstraZeneca Respondent's concerns regarding the colour photocopies, the unaccounted eighth copy document, the "Remaining copies" issue and the missing invoice. In my opinion, I must consider Carlile, supra and Diversified Products, supra, which are outlined above and allow a reasonable amount for all of the photocopies. For these reasons, I reduce and allow the in-house photocopies by twenty percent to $3,174.38 and I allow the outside photocopy disbursements in their entirety at $1,735.51.
[47] The Novopharm Applicant has claimed $5,118.50 as disbursements for Expert Fees and $168.00 for transcripts. In my opinion, these expenses have been established by affidavit and were reasonable as well as necessary for this proceeding. I allow the both amounts of $5,118.50 and $168.00 in their entirety.
[48] I paragraph [36] above, I allowed the counsel fees claimed for travel by counsel. In my opinion, it is appropriate that I now allow the disbursements associated with the same travel to Montreal for the cross-examination of Philip Lackman. Therefore, I allow the $806.27 for this disbursement.
[49] The Novopharm Applicant has requested a total of $1,776.53 for miscellaneous expenses and has itemized these expenses. There are two specific items that are claimed by the Novopharm Applicant which include Meals ($24.06) and Travel (Local) ($145.98). I do not believe these are appropriate claims as disbursements with regard to the specific circumstances of these proceedings and they are disallowed. I allow the remaining disbursements for Long distance telephone calls ($23.59), Computer case law search database fees ($669.47), Facsimile charges ($158.50), Couriers and postage ($54.55), Process servers ($125.00), Law Society of Upper Canada transaction Levies (two Notices of Application) ($100.00), Agent/Associate fees for filing/service ($275.38), Requisitions for two hearings ($100.00) and Filing fees (two Notices of Application) ($100.00). These amounts appear reasonable and will be allowed for a total of $1,606.49.
[50] With regards to the total disbursements, I have allowed $3,174.38 for in-house photocopies, $1,735.51 for outside photocopies, $5,003.00 for Expert Fees, $168.00 for transcripts, $806.27 for travel disbursements and $1,606.49 for miscellaneous disbursements which totals $12,493.65 for these disbursements. The Novopharm Applicant has requested GST at seven percent for all of its disbursements that it has claimed. It is appropriate that I turn to Englander v. Telecommunication Inc. [2004] F.C.J. No. 440 (T.O) in which the Taxing Officer states:
Tariff B1 (3)(b) of the Federal Court Rules, 1998 expressly provides for "any service, sales, use or consumption taxes paid or payable on counsel fees or disbursements". Further, it would be prohibitively expensive for the Court to investigate accounting practices and tax returns of each party appearing before it to determine whether GST "flowed through" a certain party at a certain time. Cases such as Launière v.Canada (Attorney General), [2002] F.C.J. No. 1505 (A.O.) confirm that GST is routinely allowed...
I disallow GST to be claimed on the $200.00 that I have allowed as disbursements for the Requisitions for two hearings and for the Filing fees (two Notices of Application) since this amount is not charged by the Federal Court Registry. In my opinion and considering Englander, supra, it is appropriate that I allow $860.56 for GST which brings the total for disbursements and GST to $13,354.21 for both proceedings.
[51] As outlined in this assessment, I have determined the assessment of the Bills of Costs payable by the AstraZeneca Respondent to the Novopharm Applicant in as outlined in paragraphs [28], [29], [30], [31], [32], [33], [35], [36], [37], and [42] to be $1,540.00, $770.00, $1,595.00, $6,160.00, $1,485.00, $10,890.00, $770.00, $550, $880.00 and $220.00 for a subtotal of $24,860.00 plus GST of $ 1,740.20. I have determined in paragraph [50] that disbursements are $12,493.65 plus applicable GST of $860.56. When added together, the assessable services and disbursements plus the applicable GST total $39,954.41. Pursuant to the Order of the Court dated January 21, 2004, the Novopharm Applicant is entitled to post-judgment interest on the total amount that I have assessed for the assessable services and disbursements associated with this Bill of Costs. The rate, as defined by section 127(1) of the Courts of Justice Act, is set at 4.50 percent and begins to run after from one month after the date of the issuance of the Certificate of Assessment and the Assessment of costs - Reasons.
[52] The Novopharm Applicant's Bill of Costs is assessed and allowed in the amount of $39,954.41 payable by the AstraZeneca Respondent to the Novopharm Applicant. A Certificate of Assessment is issued to the Novopharm Applicant for $39,954.41 plus post-judgment interest at the rate of 4.50 percent, pursuant to section 127(1) of the Courts of Justice Act, to begin one month after the issuance of the Certificate of Assessment and the Assessment of costs - Reasons.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
June 1, 2006
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