Federal Court |
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Cour fédérale |
Toronto, Ontario, March 14, 2011
PRESENT: The Honourable Mr. Justice Hughes
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BEECHAM GROUP p.l.c.
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and
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THE MINISTER OF HEALTH
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REASONS FOR ORDER AND ORDER AS TO COSTS
[1] In my Reasons and Judgment dated March 1, 2011 (2011 FC 239) I set out my disposition as to costs subject to any further comments from Counsel. I have now received these comments.
[2] Counsel for Pharmascience writes that an offer was made not to proceed with the cross-examination of Dr. Jurs if his affidavit was withdrawn. That affidavit was not withdrawn and the cross-examination proceeded. GlaxoSmithKline’s Counsel writes that the offer was not a real offer, that the effort in preparing the affidavit had already been made, and that the subsequent cross-examination was in reality a fishing expedition.
[3] Pharmascience’s Counsel wants costs and disbursements of the Jurs cross-examination on an increased scale plus a credit for two hours of time at the hearing before me. GlaxoSmithKline’s Counsel opposes all of that.
[4] The time spent at the hearing on Dr. Jurs and his evidence, which was directed to what was termed the Log P issue, was trivial. GlaxoSmithKline did have to expend the effort and cost in preparing the affidavit. However, GlaxoSmithKline should have considered more seriously Pharmascience’s offer and later, in dealing with costs, asked for costs of the withdrawn affidavit. This did not happen. The cross-examination was conducted.
[5] I will award Pharmascience the costs of conducting the cross-examination of Dr. Jurs, and related disbursements, assessed at the same scale as GlaxoSmithKline’s costs. These costs are to be set-off against costs otherwise taxed by GlaxoSmithKline.
ORDER
THIS COURT ORDERS that
1. Costs of the cross-examination of Dr. Jurs, and related disbursements, are awarded to Pharmascience 0n the same scale as costs awarded to the Applicants and are to be set-off against costs taxed by the Applicants pursuant to my Judgment of March 1, 2011.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1687-09
STYLE OF CAUSE: GLAXOSMITHKLINE INC. and
BEECHAM GROUP p.l.c. v. PHARMASCIENCE
and THE MINISTER OF HEALTH
PLACE OF HEARING: Toronto, Ontario
DATES OF HEARING: February 15, 2011 to February 17, 2011
APPEARANCES:
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Carol Hitchman
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FOR THE RESPONDENT PHARMASCIENCE INC.
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No One |
FOR THE FOR THE RESPONDENT MINISTER OF HEALTH
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SOLICITORS OF RECORD:
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Gardiner Roberts LLP Toronto, Ontario |
FOR THE RESPONDENT PHARMASCIENCE INC.
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Myles J. Kirvan Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT MINISTER OF HEALTH |