Date: 20010109
Docket: T-418-98
Ottawa, Ontario, this 9th day of January, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MERCK FROSST CANADA INC. and
MERCK & CO., INC.
Applicants
- and -
THE MINISTER OF HEALTH and
APOTEX INC.
Respondents
REASONS AND ORDER
| [1] This is a motion by the respondent, Apotex Inc. ("Apotex") to me requesting that |
I amend my Order in this matter pursuant to Rule 397 of the Federal Court Rules, 1998.
| [2] Apotex appealed my Order and its notice of appeal appealed my decision as to |
costs.
| [3] There is no doubt from the material filed on this motion that the material clearly |
indicates that there was an agreement before the Court that the parties would reserve their submissions to me with respect to costs until after I had rendered my decision on the merits.
| [4] Through inadvertence, I included in my decision and Order an award of costs to |
the applicants, despite the agreement that the parties would later make submissions on costs to me.
| [5] The issues that are raised by the motion are an order extending the time for filing |
this motion as it was not made within the 10 days required by the Rules and whether I have jurisdiction to make such an order amending my Order as to costs when the issue of costs has been appealed to the Federal Court of Appeal.
| [6] I am prepared to grant an extension of time for the service and filing of this |
motion.
| [7] Unfortunately, I cannot grant the motion to amend my Order with respect to |
ordering costs of the application to the applicants as I do not believe I have the authority to grant such an order once a notice of appeal has been filed with respect to the costs issue.
| 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.
|
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 peuvent être corrigées à tout moment par la Cour.
|
| I have come to the conclusion that Rule 397(1)(a) does not apply as the Reasons and Order are in agreement. As well, Rule 397(1)(b) does not apply as I did deal with the matter of costs, albeit it was not in the manner agreed upon at the hearing. |
| [9] That leaves Rule 397(2) to be discussed. Although this Rule is very broad, I do |
| not believe it covers the situation such as the present case where I have made a ruling as to costs and that ruling has been appealed to the Federal Court of Appeal. Madam Justice Reed in Flexi-Coil Ltd. v. Smith-Roles Ltd. (1985) 4 C.P.R. (3d) 174 (F.C.T.D.) at page 175 stated: |
| There is, however, an additional and overriding reason for rejecting this motion: the December 6, 1984 order is under appeal. Accordingly, in my view, it would be highly improper for me to attempt to vary that order now, even should I wish to do so. |
| The motion will be dismissed. The defendant should have its costs of this application in any event of the cause. |
| My decision with respect to costs has been appealed and I would therefore adopt the reasoning of Madam Justice Reed. |
| [10] I must add that had I come to the conclusion that I had jurisdiction to grant the |
| motion with respect to costs, I would have so done as the inclusion of the award of costs to the applicants was an inadvertent error on my part as costs were to be addressed after my decision was given. |
| [11] The motion as it relates to the setting aside of the award of costs to the applicants |
| [12] As this motion was made as a result of an error in my Reasons and Order, there |
| shall be no order as to costs on this motion. |
| [13] IT IS ORDERED that an extension of time for the service and filing of this |
| [14] IT IS FURTHER ORDERED that the motion as it relates to the awarding of |
| costs to the applicants is denied. |
| [15] AND IT IS FURTHER ORDERED that there shall be no order as to costs on |