Date: 20010425
Docket: T-80-83
Neutral Citation: 2001 FCT 384
BETWEEN:
THE WELLCOME FOUNDATION LIMITED
and GLAXO WELLCOME INC.
Plaintiffs
- and -
APOTEX INC.
Defendant
REASONS FOR ORDER
MacKAY J.
[1] By motion pursuant to Rule 369 for consideration in writing the plaintiffs seek an order for clarification and correction of the terms of Judgment issued March 7, 2001 in light of the related Reasons for Supplementary Judgment Concerning Costs (the "Reasons"), dated March 12, 2001.
Background
[2] In an action for infringement of the plaintiffs' patent interests in relation to Canadian Patent no. 907,014, Judgment was rendered for the plaintiffs and special directions concerning costs were ordered in 1992 under the then existing Court Rules. Subsequently, trial of a reference concerning the plaintiffs' claim to profits led to Judgment and Reasons in August, 1998, with Supplementary Judgments issued on February 15 and 26, 1999.
[3] In the hearing on the reference, plaintiffs sought solicitor-client costs. Costs on that basis were denied, but the Court invited submissions on special directions for costs above the normal party and party basis. Those submissions were heard in May, 2000, when decision was reserved. Judgment was rendered March 7, 2001, providing special directions to an assessment officer, and Reasons for Supplementary Judgment Concerning Costs, relating to that Judgment, were rendered March 12, 2001.
[4] The plaintiffs now seek clarification and correction concerning the Judgment and the Reasons therefor, issued in March 2001, pursuant to Rule 397 which provides:
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397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
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397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes:
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvant être corrigées à tout moment par la Cour.
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[5] The plaintiffs urge that there are two respects in which the terms of the Judgment do not accord with the Reasons.
Clause 2. (iii) of the Judgment
[6] The first instance raised by the plaintiffs is clause 2(iii) of the Judgment which reads as follows:
2 (iii) Costs allowable shall include counsel fees for senior counsel at the upper level of Column IV under Tariff B, item 27, in relation to preparation for trial in working with expert accountants for a period up to four working days, of up to seven hours each, spent in analyzing and reviewing defendant's inventory and financial records and preparing, and revising quantity and revenue schedules in preparation of evidence in advance of the hearings of the reference.
[7] The Reasons at paragraph 16 refer to the plaintiffs' request that cost of the work of counsel with their expert accountants in preparation for the reference be assessed at counsel's then-current hourly rate. That paragraph then sets out a direction, essentially in the terms of clause 2(iii) of the Judgment, and it makes specific reference to that clause of the Judgment. It then concludes with a summary statement of reasons as follows:
Reasons: In my opinion the involvement of plaintiffs' senior counsel in these preparations for the reference was essential, and it warrants special direction as here provided, with time spent as established by affidavit. If time spent exceeded the specified four days, reasonable additional time may be considered by the assessing officer at the level of normal party and party costs.
[8] The plaintiffs' concern is that the Judgment omits to make specific reference to time spent by counsel beyond the specified four days, which excess time the summary statement of "Reasons" indicates may be allowed at costs on the normal party and party basis.
[9] The defendant urges that Rule 397 is not applicable in the circumstances of this case (a) because clause 1.(a) of that Rule limits reconsideration to circumstances where "the Order does not accord with any Reasons given for it"; and (b) here in the Reasons, specific reference is made to clause 2(iii) in the Order, which reflects almost verbatim the Court's direction.
[10] I note that the defendant's submissions state that the suggestion that additional time spent in excess of four days may be considered by the assessing officer at the level of normal party and party costs, "does not appear to be inconsistent with any aspect of the Judgment".
[11] Nevertheless, in my opinion, the terms of the Judgment in clause 2(iii), as in the direction included in the Reasons, adequately accord with the summary statement of "Reasons" as set out at the end of paragraph 16 of the Reasons only if the plaintiff does not contest a claim for time spent by senior counsel in excess of four days in preparations with accountants in advance of trial. The summary statement of "Reasons" specified at the end of paragraph 16 of the Reasons clearly contemplates that an assessment officer may assess time spent in excess of four days, at the normal party and party rate. In my opinion, the Judgment should specifically include provision for this, and clause 2(iii) of the Judgment should be amended to so provide.
Clause 2.(vii) of the Judgment
[12] The second instance raised by the plaintiffs is clause 2(vii) of the Judgment, which reads:
(vii) Costs of time reasonably spent by plaintiffs' senior counsel in reviewing with their accounting experts, invoices and shipping documents produced by the defendant after the hearing of the reference had commenced, shall be assessed at the upper level of Column IV in Tariff B, item 13(a), for fees for preparation for the hearing.
[13] At paragraph 20 of the Reasons, after reference to the plaintiffs' request that costs include provision for solicitor-client costs in relation to time spent by counsel with accounting experts in review and revision of some of the accountant's work, as a result of documents produced by the defendant after the hearing commenced, the Court then set out a direction, essentially in terms of clause 2(vii) of the Judgment. Following that direction the Reasons make specific reference to that clause of the Judgment. Paragraph 20 then concludes with a summary statement of reasons as follows:
Reasons:Accounted hours of counsel, both senior and junior, in working with accountants in relation to documents produced by the defendant after hearings began, which was necessitated only because of defendant's late production of the documents, should be recompensed, at the higher than usual rate here set.
[14] The plaintiffs' concern is that the Judgment omits to make specific reference to costs of time reasonably spent by the plaintiffs' junior counsel.
[15] The defendant urges that Rule 397 is not applicable under the circumstances of this case for the same reasons as in the case of the request to reconsider clause 2(iii). Thus, it is urged that the Judgment cannot be said "not to accord with any of the reasons given for it" within the meaning of Rule 397.
[16] In this case I am again persuaded that the terms of the Court's Judgment should be varied. While the reference in clause 2(vii) of the Judgment relates only to senior counsel's work, as the summary statement of reasons clearly indicates that the work of junior counsel reasonably required as a result of defendant's late production of documents shall also be assessed at higher than regular solicitor-client costs.
[17] In my opinion, the terms of Judgment should be amended to specifically accord with the Reasons in that respect.
Conclusion
[18] An Order goes allowing the application and directing modification of clauses 2(iii) and 2(vii) of the Judgment as outlined in these Reasons.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
April 25, 2001.
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