T-1305-93
| BETWEEN: MERCK FROSST CANADA INC. |
| - and - |
| MERCK & CO., INC. |
| Applicants |
AND:
| THE MINISTER OF NATIONAL HEALTH |
AND WELFARE
| - and - |
| APOTEX INC. |
| Respondents |
REASONS FOR ORDER
FINAL ORDER FOR COSTS
(Delivered from the bench at Montreal,
Wednesday, September 10, 1997 as edited)
ROTHSTEIN, J.
By Order dated June 10, 1997 in this judicial review, costs were ordered payable to Apotex by Merck on a party-party basis, special reasons having been found as required by Rule 1618 of the Federal Court Rules. Apotex's bill of cost was submitted in accordance with Tariff B although no order requiring adherence to Tariff B had been made. The following issues arise:
| l. Which column of Tariff B is appropriate; |
| 2. What number of units is appropriate; |
| 3. Objections by Merck to costs for specific services. |
As to the first two issues, Apotex submits that it should receive costs under column V based on the maximum number of units. Merck submits that costs should be under column I based on the lowest number of units. Rules 346(1) and (1.1) provide:
| 346.(1) Unless otherwise ordered by and subject to any directions from the Court, all costs shall be taxed in accordance with column III of Part II of Tariff B. |
| (1.1) In taxing and determining the number of units to be allocated to a taxable service from the range set out in the appropriate column of an item in Part II of Tariff B, the Taxing Officer shall consider |
a) the amount claimed and the amount recovered;
b) the importance of the issues;
c) the complexity of the issues;
d) the volume of work; and
e) any other matter that the Court has directed the taxing officer to consider.
It is apparent from Rule 346.(1) that column III is to be utilized except where the Court otherwise orders. It would seem that to depart from column III requires a specific order.
Initially I was in some doubt as to the criteria to be applied in selecting a column for the award of costs as Rule 346.(1.1) contains express considerations to be taken into account for the purposes of determining units to be allocated while no such list of considerations is contained in Rule 346.(1) regarding the selection of column. However on reflection, it is obvious that the selection of a column in subsection 346.(1) is to be done by the judge exercising his or her discretion in accordance with Rule 344. The considerations in Rule 346.(1.1) are instructions to the taxing officer for the assessment of units and indeed they duplicate some of the considerations listed in Rule 344.(3) and which may be taken into account by the judge in exercising his or her discretion in respect of the selection of column under Rule 346.(1).
In the present case, Merck submits that Apotex was responsible for unreasonable delay and that this constitutes special reasons for reducing costs below column III. Apotex argues that the amount involved in this case is in the many millions of dollars and that consequently much time and effort and extensive solicitor-client costs have been incurred and that party-party costs should bear a reasonable relationship to the actual cost of litigation (See Sanmammas Compania Maritima S.A. v. "Netuno" (The) (1995), 102 F.T.R. 181 (T.D.)).
In a related file T-1695-95 in which Merck was awarded solicitor-client costs, its costs, not including disbursements, amount to approximately $ 150 000 as submitted. That file has been active for a much shorter period of time than this one and it is obvious that Apotex's solicitor-client costs in this file must be, at a minimum, at least in the same range. I think the solicitor-client costs incurred in this file reflect the amounts involved for the parties in respect of the marketing and sale of lovostatin and the complexity of the issues in view of this being an early case under the Patented Medicines (Notice of Compliance) Regulations and this being the first case to deal with the procedural issues raised in it. These considerations are consistent with a significant amount of work which is reflected by the level of solicitor-client costs that I am able to infer have or will be charged to Apotex.
Merck argues that Apotex's party-party costs should be reduced because of delay caused by Apotex's failure to reasonably cooperate. I agree that unreasonable delay is a relevant factor to be taken into account. However, in this case Merck did obtain an extension order from Richard, J. which, in a manner, addressed the question of Apotex's initial failure to reasonably cooperate. The other delay occurred after December 1, 1996, for one and a half months, and as was determined in the decision in this matter, occurred after Merck has lost its right to prohibition under the Regulations. Further, I do not have before me any quantification of unnecessary costs incurred by Merck as a result of Apotex's failure to reasonably cooperate. On the other hand, I am satisfied that the party-party costs sought by Apotex are well below what may have been awarded had costs been sought on a lump sum basis and that a further reduction for failure to reasonably cooperate would not be justified.
The sum of the $ 43350 sought by Apotex under column V takes into account certain adjustments made by Apotex voluntarily. Merck challenged some other specific items included by Apotex but I am satisfied they are reasonable and should be allowed.
Bearing all these considerations in mind, I think $ 43350 calculated by reference to column V is reasonable and should be allowed as party-party costs and for this purpose, an order to depart from column III shall be made.
As to disbursements, Apotex and Merck have been instructed to settle between themselves Apotex's claim for photocopies and to negotiate reasonably to that end. Apotex claims $ 5746.43 for travelling expenses to Vancouver. The Vancouver attendance was occasioned by Apotex and indeed Apotex originally agreed to pay and did pay Merck's travelling costs to Vancouver in recognition of its causing these costs to be incurred by Merck. Had Apotex not initially insisted on the Vancouver attendance these costs would not have been incurred. These costs are disallowed.
Counsel for Apotex shall, within 7 days of the date of these reasons, prepare an order giving effect to these reasons, including the parties' disposition of photocopying charges, seek approval as to form and content from counsel for Merck and submit the draft order to the Court for signature.
Marshall Rothstein
Judge
MONTREAL, QUÉBEC
September 11, 1997
T-1305-93
MERCK FROSST CANADA INC. -and-
MERCK & CO., INC.
Applicants
THE MINISTER OF NATIONAL
HEALTH AND WELFARE -and-
APOTEX INC.
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NUMBER: T-1305-93
| BETWEEN: MERCK FROSST CANADA INC. |
-and-
MERCK & CO., INC.
Applicants
- and -
| THE MINISTER OF NATIONAL HEALTH |
AND WELFARE
-and-
APOTEX INC.
Respondents
PLACE OF HEARING: Montreal, Québec
DATE OF HEARING: September 9, 1997
REASONS FOR ORDER: Honourable Mr. Justice Rothstein
DATED: September 11, 1997
APPEARANCES:
Mr. J. Nelson Landry for the Applicants
Ms. Judith Robinson
Mr. Harry Radomski for the Respondent (Apotex Inc.)
Mr. Andrew Brodkin
Ms. Mya Rimon
SOLICITORS OF RECORD:
OGILVY RENAULT for the Applicants
Montreal, Québec
GOODMAN PHILIPS & VINEBERG
Toronto, Ontario for the Respondent (Apotex Inc.)
George Thomson for the Respondent (Minister of National
Deputy Attorney General of Canada Health and Welfare)
Ottawa, Ontario