Federal Court Cour
fédérale
Date: 20090811
Docket: T-985-05
Citation: 2009 FC 822
BETWEEN:
ASTRAZENECA AB
AB HASSLE and
ASTRAZENECA CANADA INC.
Applicants
and
APOTEX INC. and
THE MINISTER
OF HEALTH
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Applicants sought an order of prohibition to prevent the Minister of Health
from issuing a Notice of Compliance (NOC) to the Respondent, Apotex Inc.
(Apotex), for the production of omeprazole for use in a combination therapy to
treat Helicobacter pylori infections. The Court found (the Decision) that the
Applicants had not demonstrated that Apotex’s allegations of invalidity were
not justified, dismissed the application, awarded costs to Apotex and invited
submissions on their quantum.
[2]
The
Supplemental Reasons for Judgment and Judgment (the Costs Decision) refused a
lump sum award; directed that costs be assessed in the middle of Column IV;
directed that Apotex recover a single counsel fee and associated travel
expenses for the cross-examination of its own affiants and senior and junior
counsel fees (if the latter was in attendance) for the cross-examination of the
Applicants’ expert affiants; capped the recovery of the experts’ costs at the
lesser of their actual fees or the hourly rate of Apotex’s senior counsel;
directed that, although the evidence of Gerald Oyen was of no ultimate
assistance and had ventured into areas reserved to the Court, Apotex could
recover $5,000 for him because the Applicants chose to cross-examine him;
directed that interlocutory awards of costs would prevail for their respective
motions, but otherwise Apotex could recover costs in the middle of Column
IV for them; allowed counsel fee item 14((b) (attendance by second counsel at
the hearing); restricted recovery of fee items 14(a) (attendance by first
counsel) and 14(b) to four days of the hearing (the record indicates that the
fifth day was a teleconference lasting 49 minutes) and although commenting that
some disbursement items might be considered overhead left them for
determination by an assessment officer.
[3]
Consistent
with my approach outlined in paragraph 2 of Halford v. Seed Hawk Inc.,
[2006] F.C.J. No. 629 (A.O.) [Halford], my account in these reasons of
the respective positions of the parties is at times somewhat summary in nature.
It is detailed enough for an understanding of the notion of issues between the
parties, but should be read keeping in mind that there are nuances and details
of the issues in the record, all of which I have read and considered. I have
not summarized the respective positions of the parties on distributive nature
relative to an award of costs and on sufficiency of evidence as my findings in Abbott
Laboratories v. Canada (Minister of Health) (2008), 66 C.P.R. (4th)
301, [2008] F.C.J. No. 870 (A.O.) [Abbott] (under appeal) sufficiently
canvassed those issues.
[4]
My
findings in Halford above, Biovail Corp. v. Canada (Minister of
National Health and Welfare) (2007), 61 C.P.R. (4th) 33,
[2007] F.C.J. No. 1018 (A.O.), aff’d [2008] F.C.J. No. 342 (F.C.) [Biovail]
and Abbott above set out my views on the threshold of proof for
categories of costs and approach to their assessment. Paragraphs 68 to 72
inclusive of Abbott above summarize the subjective elements and the
notion of rough justice in assessment of costs. In paragraphs 38 to 40 of Aventis
Pharma Inc. v. Apotex Inc., [2009] F.C.J. No. 56 (A.O.) [Aventis 2009],
I reinforced my view that an assessment of costs should reflect the reality of
the demands of litigation.
[5]
I
have not summarized the respective evidence and submissions of the parties
concerning fee item 2 (Respondent’s Record) claimed nine times for the Record
and eight affidavits, fee item 15 (written argument where requested by the
Court) claimed for the Compendium and fee item 27 (such other services as may
be allowed by the assessment officer) claimed for preparation of the bill of
costs as I rely on my findings in Abbott above for their disposition. I
allow a single fee item 2 for Apotex’s Record and fee item 27 for the
compendium instead of fee item 15. I allow fee item 26 (assessment of costs) in
place of fee item 27. I allow the LPIC levy as claimed at $50.
[6]
I
have not summarized the respective positions of the parties concerning fee item
5 (claimed twice for preparation of uncontested motion materials). The
resultant orders were silent on costs meaning the hearing judge (for the
judicial review) was not specifically vested with jurisdiction to decide or
vary costs of the respective motions: see para. 73 of Abbott above and
para. 26 of Fournier Pharma Inc. v. Canada (Minister of
Health),
[2008] F.C.J. No. 1151 (A.O.) [Fournier Pharma Inc.]. Therefore, I disallow
those claimed counsel fees and any associated disbursements (allowances for
categories below such as photocopies address the latter).
[7]
The
Applicants conceded fee item 13(a) and (b) (preparation for four hearing days).
Apotex indicated that the rate charged by senior counsel far exceeded the rates
charged by experts, i.e. about twice the US$500 charged by Dr. David Graham.
Apotex conceded that GST ($18,159.99) charged on the claimed total
($259,428.41) for disbursements could be adjusted as it should have excluded
charges originating outside Canada, i.e. translations and experts other than
Gerald Oyen.
I. Apotex’s Position
[8]
Apotex
argued generally that the Decision and the Costs Decision recognized the
complexity of this litigation. However, the elevated award of costs gives a
Tariff amount of only $55,200 for counsel fees as compared to the actual
billing to the client of upwards of about $826,000 for legal fees alone. The record
indicates the importance of this litigation for Apotex, i.e. access to a
market of tens of millions of dollars annually. It is irrelevant that Apotex
may have had to address other patents in other litigation because this
litigation for the two subject patents was still necessary as part of the
overall strategy to gain access to the market. Apotex noted that references in
its materials to olanzapine were inadvertent as one of its experts (Dr. Michael
Mayersohn) was involved in other litigation addressing this drug and that it
does not seek the associated costs.
[9]
Apotex
noted that the Court rejected the Applicants’ allegations of abuse of process,
found that the two patents were anticipated by prior teachings and found
in favour of Apotex on other issues, i.e. obviousness, involving these patents.
The Applicants requested the Court to direct refusal to assess Apotex’s
witnesses, but the Costs Decision restricted recovery for only one witness,
i.e. $5000 for Gerald Oyen.
[10]
Apotex
discounted the Applicants’ assertion that the second fee item 8 (preparation
for cross-examination) claimed for the resumption of the cross-examination of
Apotex’s witness, Dr. David Graham, should not be allowed because Apotex’s
counsel would have been barred from speaking to a witness during the
adjournment of two months between his first and second day of
cross-examination. Apotex argued that the length of an adjournment may require
counsel to read an affidavit again, review ground already covered, anticipate
outstanding questions and consider potential re-examination, all of which is
appropriate and indemnifiable work under a second fee item 8. Apotex argued
that there was nothing in the Costs Decision to preclude recovery of a second
fee item 8 for the prudent work to prepare for the second day (about two weeks
after the first day) of the cross-examination of the Applicants’ affiant, Dr.
Micheline Piquette-Miller.
[11]
Apotex
argued that the Applicants’ calculation of the duration of the
cross-examination of affiants in the formula for the fee item 9 (attendance)
claims, i.e. by excluding each recess, lunch or bathroom break, ignored the
reality that counsel continued to work throughout. Apotex applied a similar
argument for the fee item 14 (attendance at hearing) calculations (the
Applicants proposed reducing 29 hours to 26.1 hours) and noted that it could
have claimed 32 hours based on an eight hour day on the assumption that counsel
worked throughout the day.
[12]
Apotex
argued generally that the Applicants’ assertions of excessive experts’ accounts
are undermined by the reality that their strategy for experts failed as opposed
to the success of Apotex’s strategy of spending more on harder working experts.
Apotex noted several instances in the Decision of the Court preferring its
expert evidence over that of the Applicants and argued further to the
notion of rough justice in Abbott above that my familiarity with the
work and costs required for NOC litigation should permit a reasonable allowance
in the face of less than complete proof. The Costs Decision rendered after
submissions on costs from both sides did not preclude Apotex’s right to
indemnification for its experts such as John Jappy ($5,985.84), an expert on
patent prosecution practice in the European Patent Office, even if the decision
did not mention him.
[13]
Apotex
asserted that Dr. Robert McClelland’s account in Abbott above was
reduced for a number of reasons none of which are factors here. His claim
($37,370.36) is reasonable given his contribution recognized explicitly by the
Court and the need for travel and communication to and from his home in Scotland.
[14]
Apotex
argued that the Decision recognized the importance of Dr. Graham’s expert
evidence and that the Applicants’ proposed 50 percent reduction of his claim
($56,568.71) was unfair and arbitrary. That the Applicants required two days
for his cross-examination indicates the significance of his evidence.
[15]
Apotex
noted that the Decision referred extensively to Dr. Michael Mayersohn. The
Court did not discount his expert evidence or find it redundant relative to
that of Dr. McClelland or Dr. Graham. The Applicants could have, but did
not, raise concerns about quantum, meals, hours etc. with the Court in the
costs submissions invited by the Decision. Apotex discounted the Applicants’
submission that their abbreviated cross-examination of Dr. Mayersohn highlights
the excessiveness of his charge by asserting that it may be that he was so
competent and prepared that they realized that an extended cross-examination
would not have been productive.
[16]
Apotex
noted the evidence that the photocopying claim ($29,476.95) was the actual
amount charged to the client, that it was based on the accepted practice in the
Federal Court of $0.25 per page and that a breakdown of the copies is provided.
For example, seven copies of Apotex’s six-volume Book of Authorities were
required as follows: three for the Court, one for the Applicants and three for
Apotex’s counsel keeping in mind the Decision’s acknowledgement of its use of
four counsel. The same number of copies was made of the Compendium as part of
miscellaneous trial preparation. The logistics of conducting a trial in two
different venues required sufficient copies to ensure complete access to the
materials.
[17]
Apotex
argued that the translation services ($2,624.13) were essential and addressed
prior art documents or articles required by the experts for their evidence.
Apotex discounted the Applicants’ submission that the prior art was never
translated by asserting that translated versions may have been part of the
general grouping of the prior art. Apotex argued that the list of prior art
attached to a Notice of Allegation (which necessarily precedes institution of
NOC litigation) does not mean that prior art charges ($7,783.55) were not
attributable to this proceeding.
[18]
Apotex
noted that, as has often occurred in its NOC litigation, the law firm of Ivor M
Hughes was associate counsel although not the solicitor of record and was the
source of some of the essential computer research charges ($1,484.36). The
abuse of process allegation was a serious concern and required research for
every relevant piece of case law. Similarly, the Quicklaw searches ($1,106.46)
were essential. The charge ($377) for file histories (to look up patent
prosecution files) was noted in Abbott as a regular occurrence in NOC
litigation.
[19]
Apotex
asserted that telephone and telecopy charges ($834.69 and $105 respectively)
are essential for NOC litigation with international aspects such as translation
of documents, booking boardrooms for cross-examinations and contacts with
witnesses. The size of the record and the need for timely service indicates the
relevance of courier and process server charges ($1,988.85 and $1,004.75 respectively).
[20]
Apotex
noted that as part of its submissions on costs invited by the Decision it
included an amount ($14,839.94) for travel to form part of the requested lump
sum award. The Costs Decision refused a lump sum award and inter alia
directed that Apotex be limited to travel expenses for one counsel for
cross-examination of its own witnesses and for two counsel if appropriate for
cross-examination of the Applicants’ witnesses. However, the Costs Decision was
silent on travel costs for the hearing and Apotex has decided to not pursue
those costs of about $9,000. Apotex inadvertently omitted in the bill of costs
for assessment the travel costs for cross-examinations and requested
permission to add them now, i.e. $4,170.93 calculated further to the Costs
Decision. To simplify this request, Apotex waived any associated GST. The
Applicants cannot maintain that this item is a complete surprise because it was
before the Court as part of the lump sum request.
II. The Applicants’ Position
[21]
The
Applicants argued generally that the record indicates that this matter was not
complex. Apotex cross-examined only two witnesses. Generally, all
cross-examinations were straightforward and not lengthy, i.e. about 1.5 to 4
hours. Neither side attempted to lead more experts than the permitted number in
the legislation. Market share was not a factor because Apotex already had an
NOC to sell its Apo-omeprazole capsules for other indications. This litigation
was not determinative of Apotex’s access to the market as it had other patents
to address, i.e. Federal Court file T-2100-07. If Apotex can argue that
the Court’s silence on Mr. Jappy does not prevent recovery of his charges, then
the Applicants can argue that the Court’s silence on punitive costs means that
the abuse of process allegation is irrelevant as a factor in this assessment of
costs.
[22]
The
Applicants argued that the Costs Decision did not permit double recovery for
fee item 8. The Applicants conceded that work is sometimes required during
such adjournments, but Apotex led no evidence to that effect. The Applicants
argued that the middle value of fee item 9 (available range = 0 – 4 units per
hour) is 2 units and not the 2.5 units claimed. The Applicants’ calculated
duration of each cross-examination excluded only lunch breaks. It is illogical
for Apotex’s counsel to claim work with his own witness during lunch breaks
because of the prohibition against such contact.
[23]
The
Applicants noted that the Costs Decision did not specify a formula for
calculation of the total hours for the four hearing days allowed under fee item
14. The Applicants used the start and end of times in the court record, which
include all breaks, to get 26.1 hours in place of Apotex’s claim of 29 hours.
They conceded perhaps only an additional 0.2 or 0.3 hours for getting settled
in the courtroom prior to commencement.
[24]
The
Applicants argued that fee item 15 (written argument requested by the Court)
cannot be allowed as such work is subsumed in fee item 2. The Applicants argued
further to Abbott above that at most the two fee item 15 claims might be
compressed into a single allowance as the Compendium essentially duplicated fee
item 13 work.
[25]
The
Applicants argued that Mr. Jappy’s account should be disallowed or reduced
because the Decision did not mention him. Paragraph 67 of the Decision
indicated that patent construction further to grammatical analysis does not
require expert opinion.
[26]
The
Applicants argued for a 50 percent reduction as the charge of $10,078 for
Dr. McClelland’s travel between Scotland and Toronto for a one
day cross-examination is unreasonable with particular regard to airfare
($8,552.64) and ground transportation in Toronto ($196).
[27]
The
Applicants argued that as Dr. Graham’s invoice ($8,151.50) for work up to and
including his cross-examination and another invoice ($41,825) for preparation
of his affidavit provide insufficient information for assessment of relevance
and reasonableness, a reduction of one-third to one-half would be appropriate.
The onus is on Apotex to lead evidence establishing its claim and not on the
Applicants to elicit details via cross-examination. The rough justice noted by
Apotex does not necessarily mean accepting an invoice without question.
[28]
The
Applicants argued that Dr. Mayersohn is an example of the excessive charge of a
“Cadillac” type of expert. His affidavit was 39 pages excluding the one exhibit
(his curriculum vitae). The transcript of his cross-examination
indicates completion at about 1:00 p.m. and duration of only 3.5 hours
including breaks, yet he charged for six hours. As well, he charged for lunch
($124.60), dinner ($162.40) and an extra hotel night ($495.60). The Applicants
should not be responsible for such excess.
[29]
The
Applicants noted that as Dr. Mayersohn’s invoice dated December 7, 2005 ($66,132.50)
claimed for work on olanzapine, a pharmaceutical not in issue here but one on which he
has worked for Apotex in other matters, i.e. Federal Court files T-156-05 and T-787-05,
it should be disallowed or reduced. Apotex’s evidence does not provide clarification.
Dr. Mayersohn’s claim ($63,932.50) of 107 hours to prepare his affidavit
is particularly excessive with regard to the longer affidavits and
cross-examinations of Dr. Graham ($42,825) and of Dr. McClelland
($14,249.56). Much of his time was spent reading literature or perhaps his
instructions were insufficient. The Decision indicated that his evidence was in
part redundant. The Applicants should not have to pay for his three day
trip ($2,200) to prepare his affidavit given that Apotex had had several months
including an extension of time. His account should be reduced by one-third to one-half.
[30]
The
Applicants argued that given no evidence supporting the telephone, telecopy,
courier and process server claims, nothing should be allowed.
[31]
The
Applicants argued that Apotex’s materials do not confirm that $0.25 per
photocopy was used, but simply assert that it was the reasonable standard
in Toronto. The claimed
amount of $29,476.95 is inconsistent with that rate not being a multiple of
$0.25. The term miscellaneous used in the bill of costs does not establish what
or how much was copied and that it was not simply law firm overhead. The
materials listed total about 10,700 pages, but the $29,476.95 equates to about
118,000 copies at $0.25 per page, a discrepancy not at all explained in the
evidence. The final (5th) day of the hearing was by teleconference
and could not have caused extra photocopies by reason of a split venue.
[32]
The
Applicants argued that as translated prior art materials were not in the record,
their charges should be disallowed. Alternatively, the portion in Invoice No.
1093 attributable to omeprazole is less than 50 percent of the total invoice
amount, yet Apotex claims 50 percent in the bill of costs. This
translation charge should be reduced by word count apportionment.
[33]
The
Applicants argued that prior art charges should not be recoverable as they were
incurred prior to institution and are therefore a cost of doing business and
not litigation. That is, part of the decision-making process relative to
generic pharmaceuticals occurs outside litigation process, i.e. wait for
patents to expire versus advance an NOA. If something is allowed, it should be
a reduced amount because some of the prior art did not relate to omeprazole.
[34]
The
Applicants argued that nothing should be allowed for Quicklaw and computer
research in the absence of supporting evidence.
[35]
The
Applicants noted that the lack of supporting documentation was one reason the
Court refused lump sum costs. It is somewhat unfair for Apotex to introduce the
travel costs ($4,170.93) at this late stage still unsupported by evidence to
enable evaluation of reasonableness.
[36]
The
Applicants noted that, in addition to GST concerns conceded by Apotex,
adjustments are required for some transcript and computer research transactions
which occurred outside Canada.
III. Assessment
[37]
As
in NOC matters such as Abbott, Fournier Pharma Inc., Aventis
Pharma Inc. v. Apotex Inc., [2008] F.C.J. No. 1238 (A.O.) [Aventis 2008]
and Aventis 2009, I read the NOA, the respective memoranda of fact and
law and expert reports of the parties and the associated cross-examinations of
affiants to gauge the effort demanded of counsel and the appropriate amounts of
counsel fees and disbursements. The direction here for middle Column IV costs
means that I do not have flexibility as in paragraph 23 of Aventis 2008
to address a second fee item 8 claim for the same witness by a single fee item
8 allowance at the maximum value in the range. I am not convinced further to my
reading of the relevant affidavits, transcripts of cross-examination and other
documents such as the NOA that Apotex should have a second fee item 8 for
either affiant.
[38]
I
addressed duration issues for fee items 9 and 14 in paragraphs 32 to 37
inclusive of Aventis 2009. I find the Applicants’ evidence and
position on fee item 9 persuasive particularly given that they left recesses
untouched while factoring out lunches only and I therefore adjust the calculations
accordingly. As well, I agree with them that the middle value in the available
range of 0 – 4 units per hour ($120 per unit) is 2 units and not the 2.5
units claimed (2.5 units would be the middle value in the available Column IV
range of 1-4 units per hour for item 6 addressing attendance on a motion
hearing).
[39]
The
Applicants’ calculation of 26.1 hours for fee item 14 flowed from the Court’s
record of start and end times inclusive of all breaks. That results in
25.25 hours for the first four hearing days. The addition, a step at odds
with the Applicants’ position in the hearing before me that Apotex could
claim only the first four days, of 0.82 hours (the fifth day teleconference)
results in the 26.1 hours. Apotex did not itself claim the fifth day. I
allow the Applicant’s amended suggestion of 26.4 hours.
[40]
Fee
item 15 is positioned in Tariff B under the subheading ‘E. Trial or Hearing’.
The latter term applies to the hearing here of the substantive issues of the
lawsuit, but does not apply to assessments of costs and notices of status
review because they are interlocutory events incidental to the trial or
hearing. Fee item 15 is not intended as additional compensation for fee item 2
work, which falls under the subheading ‘A. Originating Documents and Other
Pleadings.’ As well, the use in fee item 2 of the adjective “all” in
conjunction with “respondents’ records and materials” precludes additional
compensation using other items such as fee item 15. A litigant would not at the
time of the work under fee item 2 have incurred the costs associated with the
written submissions on costs invited here by the Decision. I allow fee
item 15 at the amount presented, but I have designated it for the written
submissions on costs in place of the submissions on ineligibility for listing
in the Patent Register noted on the bill of costs.
[41]
It
might seem illogical to allow anything for Mr. Jappy if I think that the
Court’s comment in paragraph 67 precluding a role for an expert meant that the
associated costs must be refused. As Apotex noted, the Court targeted only
Mr. Oyen’s account for a specific limitation. Mr. Jappy’s affidavit was
straightforward as was his brief cross-examination. I accept the Applicants’
suggestion of one-half and allow $2,992.92.
[42]
The
transcript of Dr. McClelland’s cross-examination on August 31, 2006, indicated
considerable time spent probing his qualifications and his relationship with
Apotex in general. Questions (pages 125 – 129) on the preparation of his
evidence elicited reference to and reliance on a research tool unexpected
in my experience for an expert with considerable rates. He used the internet
encyclopedia, Wikipedia, to research the structure of certain antibiotics. His
ordinary industry research tool had apparently been misplaced. A series of
questions (pages 173 – 177) probed the extent of his relationship with Apotex
and confirmed that it was the source of much of his work. However, he asserted
that he would have and had refused work if he did not agree with the client’s
proposed position.
[43]
I
have assessed Dr. McClelland’s accounts for other NOC matters. He charged
$14,249.56 for research and preparation of his affidavit. The balance
($23,120.80) of his account includes charges of about $3,300 for his time for
each leg of his return flight between Scotland and Toronto. The
outbound leg charge indicates time spent to review his affidavit. The rationale
is not in the evidence, but to get to his departure city in Scotland, he required
one-third of a day for which he charged about $1,100 for his time and $265 for
a limousine. He then had to stay overnight at an airport hotel to make his
flight. A hotel statement was not produced, but it apparently cost just under $800.
His bill clearly indicates a business class airfare of about $8,700. I have
held several times that full fare economy class is the accepted practice. I
think that Dr. McClelland’s account should be reduced, but not to the extent
proposed by the Applicants. I allow $31,000.
[44]
The
transcript of Dr. Graham’s cross-examination on June 5, 2006 indicates a
competent professional with a straightforward manner. He referred (p. 81) to
himself as “an old country doc” and “an average doctor”, but his competence in
his field is apparent. I think that his testimony (p. 10), i.e. he does
not presume expertise on patent invalidity within the domain of counsel,
indicates an understanding of the limits of his mandate to comment on the NOA
and on opposing expert evidence. He kept his composure and focus during a
series of exchanges in his second day of testimony (pp. 116 to 152)
between counsel on the scope of evidence managing, for example, to refer to the
President of the United States knocking on his door and to the National
Enquirer in the context of addressing hypothesis and prediction.
[45]
I
agree with the observation that rough justice in assessments of costs does not
require acceptance without question of the full amount of invoices. Dr.
Graham’s invoices were brief, i.e. reviewing literature, affidavits. The
amount (US$194.04) for his meals and ground transportation is certainly
reasonable. There is no information on his airfare between Houston and Toronto. I could see
nothing about Dr. Graham to indicate irrelevance or excess. I allow his account
as presented at $56,568.71.
[46]
Dr.
Mayersohn’s invoices include some details on meals, i.e. US$116 for one of his
dinners (May 13, 2006 invoice). The heading of his December 7, 2005 invoice
refers to omeprazole, but its body refers to olanzapine. The underlying time
sheet refers only to omeprazole. I think that the reference to olanzapine was
inadvertent. He billed for 145 hours all at US$500 per hour except for 34 hours
at US$600 per hour. His billing refers to time in transit, but it is unclear
whether he charged for that time because the relevant line entries also
referred to other work. The Court did at times rely specifically on his
evidence. However, I am not convinced that the issues warranted the amount
claimed. I allow a reduced amount of $78,000.
[47]
I
have generally held that a paucity of evidence may result in conservative
allowances. Disbursements associated with interlocutory orders silent on costs
are not allowable. I allow the telephone and telecopy charges as presented at
$834.69 and $105 respectively. I allow the courier and process server charges
at reduced amounts of $1,575 and $850 respectively.
[48]
Paragraph
65 of Abbott above summarized my practice for photocopies including the
need “to strike the appropriate balance between the right of a successful
litigant to be indemnified for its reasonably necessary costs and the right of
an unsuccessful litigant to be shielded from excessive or unnecessary costs.” If
I concede the Applicants’ page count of 10,665 pages for the materials listed,
other than miscellaneous trial preparation and correspondence, the claimed
$29,476.95 equates to just under 118,000 pages: effectively about 11 copies of
each page. This is a discrepancy because the record indicates two to seven
copies of given documents. The evidence does not clarify. I allow a
conservative and reduced amount of $19,000.
[49]
Invoice
No. 1093 billed CAN$1,298.05 for translation services split equally between
this matter and an unrelated matter. This invoice clearly shows that only 38
percent of that amount is attributable to this matter. The internal law firm
coding for this matter, LT1036, was used with the coding LT1037 for the
unrelated matter in Invoice No. 1093. Another invoice dated October 20, 2005,
also contained amounts for LT1036 and LT1042, but claimed only the amount for
LT1036. The third invoice addressed only LT1036. None of the invoices provide any
real detail of what was translated, i.e. Invoice No. 1093 refers to “a medical
article”. I allow a reduced amount of $2,400.
[50]
I
held in paragraph 13 of Mitchell v. Canada (Minister of
National Revenue – M.N.R.), [2003] F.C.J. No. 1530 (A.O.) that costs prior
to institution are assessable. The paucity of evidence here makes it difficult
to be certain that the charges for the acquisition of prior art were not
attributable to unrelated matters given that Apotex markets many pharmaceuticals.
I allow prior art at the reduced amount of $6,800.
[51]
Further
to my comments in paragraph 111 of Abbott addressing the circumstances
of computer time and Quicklaw search, I allow them at the reduced amounts of
$1,150 and $825 respectively. My comments in paragraph 70 of Aventis 2009
addressed the circumstances of file histories which I allow as presented at
$377.
[52]
Apotex’s
written submissions on costs invited by the Decision did not contain any
breakdown of the total travel amount of $14,839.94 other than it addressed
travel to Texas,
Las Vegas and Ottawa. It is never good practice to introduce claims
without notice. The Applicants might have reasonably thought that the omission
of a claim for travel in the bill of costs before me meant that Apotex had
abandoned it as litigants sometimes do. I accept the assurance of counsel for
Apotex that its omission was inadvertent. There may have been a mix of
reasonable and not so reasonable charges comprising the $4,170.93 advanced
before me. I allow $3,700.
[53]
The
bill of costs claims $18,159.99 for GST. Paragraph 73 of Aventis 2009
discussed GST exclusion calculations in circumstances as here of obscure
evidence. All of the translation charges originated outside Canada and were not
subject to GST. The experts, other than Mr. Oyen, were from outside Canada, but Dr.
McClelland’s cross-examination occurred in Toronto meaning some
travel expenses such as hotels, meals and certain taxis were subject to GST,
but not items such as airfare or professional fees. The Applicants noted
several categories of disbursements also not subject to GST such as
transcripts. However, the record indicates that only just over $1,000 of the
$9,934.66 claimed for transcripts would not have been subject to GST as some
cross-examinations did occur in Toronto. Aventis 2008 contained
an example of a modified GST exclusion calculation not really suitable here
because of the obscurity of information in some areas. I allow $6,400 for GST
which I think is a conservative amount in the circumstances.
[54]
The
bill of costs of Apotex, presented at $332,788.40, is assessed and allowed at
$265,386.98.
“Charles
E. Stinson”
Vancouver,
BC
August
11, 2009
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