Date: 20070830
Docket: T-985-05
Citation: 2007 FC 871
Ottawa, Ontario, August 30, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ASTRAZENECA AB,
AB HASSLE and
ASTRAZENECA CANADA INC.
Applicant(s)
and
APOTEX INC. and
THE MINISTER OF HEALTH
Respondent(s)
SUPPLEMENTAL REASONS FOR
JUDGMENT AND JUDGMENT
[1]
These
reasons address the outstanding issue of costs on which I invited written
submissions from the parties in my decision on the merits dated June 28, 2007.
[2]
Notwithstanding
the appeal and efficiency of fixing a lump sum for taxable fees and
disbursements, I agree with the Applicants, Astrazeneca AB, AB Hassle
and Astrazeneca Canada Inc. (Astrazeneca), that they ought to have the
opportunity to have the reasonableness of those claims specifically addressed
on a taxation. I will, however, provide some guidance with respect to some of
the issues which may simplify that exercise.
[3]
The
complexity of this case appears similar to that in Eli Lilly Canada Inc. v.
Novopharm Limited and The Minister of Health, 2007 FC 708, where costs
listed in the middle of Column IV were awarded. I would adopt that standard in
this proceeding.
Counsel Fees for Witness
Examinations
[4]
I
would direct that the Respondent, Apotex Inc. (Apotex), recover only a single
counsel fee for its attendance on the cross-examination of its own witnesses.
Travel and accommodation expenses for such examinations shall also be limited
to one counsel. For the attendance to examine Astrazeneca’s expert witnesses,
I will allow for one senior counsel and, if in attendance, one junior counsel.
Expert Fees
[5]
I
am not in a position to properly assess the reasonableness of the rates charged
by Apotex’s expert witnesses. However, the taxable fees for those experts
shall be allowed at the lesser of the actual fees charged or the hourly rate
charged by Apotex’s senior counsel for the actual time expended by each
witness.
[6]
The
evidence of Mr. Oyen was of no ultimate assistance and it did venture into
areas reserved to the Court. Nevertheless, Astrazeneca chose to cross-examine
him and some allowance should be made for that exercise. I would, therefore,
limit the amount Apotex may recover for Mr. Oyen’s professional fees to
$5,000.00.
Motions
[7]
Where
a pretrial motion was disposed of with an Order for costs, that award will
prevail. Otherwise, such costs shall be awarded at the middle of Column IV.
Counsel Fees at Hearing
[8]
I
will allow Apotex to tax costs for first and second counsel at the hearing of
this application (to the extent that two counsel were in attendance) for 4 days
of Court time.
Other Disbursements
[9]
I
am not in a position to assess the reasonableness of the claims by Apotex to
other disbursements. For instance, I do not know the rate charged for
photocopies but the amount claimed of slightly less than $30,000.00 may be
high. Similarly, I am not able to determine what has been claimed for
“computer time charges”, “file histories”, “prior art charges”, or “QL
searches”. These amounts may well be justified but, on the other hand, they
may represent in-house overhead items which would be more appropriately
subsumed within the amounts payable as counsel fees. These are all matters
more appropriately left for an assessment by an assessment officer in
accordance with the usual practice of the Court.
JUDGMENT
THIS COURT ADJUDGES that Apotex shall be entitled to tax its costs in this proceeding
in accordance with these reasons.
“ R. L. Barnes ”
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