Federal Court Decisions

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 ”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-985-05

STYLE OF CAUSE:                          ASTRAZENECA AB, et al

                                                            v.

                                                            APOTEX INC. et al

PLACE OF HEARING:                    OTTAWA, ONTARIO

DATE OF HEARING:                      April 2, 2007

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    BARNES J.

DATED:                                             August 30, 2007

APPEARANCES:

SOLICITORS OF RECORD: