Date: 20021129
Docket: A-36-98
Neutral citation: 2002 FCA 478
BETWEEN:
APOTEX INC.
Appellant
- and -
MERCK & CO. INC., and
MERCK FROSST CANADA & CO.
Respondents
ASSESSMENT OF COSTS - REASONS
Assessment Officer
[1] This appeal, addressing a decision concerning a motion for relief against the operation of an injunction enjoining infringement of a patent for medicine, was dismissed with costs. I issued a timetable for written disposition of the Respondents' bill of costs. The Respondents withdrew claims for second counsel under item 22 (appearance at appeal) and for two counsel under item 24 (travel) from the bill of costs as initially filed.
The Appellant's Position
[2] The Appellant argued that claims at the maximum in the ranges for items 19 (Memorandum of Fact and Law) and 22 should be reduced to 5 and 2 units respectively. The Appellant noted that an abstract of hearing was not provided and argued that the 8½ hours claimed for item 22 should be reduced by 2¾ hours to account for breaks during the hearing days such as recess and lunch. The Appellant argued that associated travel disbursements for counsel should not be allowed if their time under item 24 cannot be claimed.
The Respondents' Position
[3] The Respondents argued that the record establishes the importance and complexity of this litigation relative to the pharmaceutical market and warrants counsel service items at their maximum. The Respondents argued per Wellcome Foundation Ltd. v. Apotex Inc. (1992), 40 C.P.R. (3d) (F.C.T.D.); Van Daele v. Van Daele, [1983] B.C.J. No. 1482 (B.C.C.A.); Riello Canada v. Lambert (1987), 15 C.P.R. (3d) (F.C.T.D.) and Rothmans, Benson & Hedges v. Imperial Tobacco (1993), 50 C.P.R. (3d) (F.C.T.D.) that the threshold for approval of costs should be what appeared to be reasonably necessary at the time the decision was made to incur the costs. The Respondents asserted that the claim of 8½ hours under item 22, uncontroverted in the record as the time required to address this appeal, was a function of information from the Registry. Both sides used two counsel at the hearing as a function of the complexity of this matter and therefore the travel disbursements for second counsel should be allowed even if her travel time is not indemnified under item 24. The Tariff does not preclude recovery of such travel costs. The Respondents noted that the record discloses difficulties between the parties in resolving costs. Per Sanmammas Compania Maritima S.A. v. The "Netuno", [1995] F.C.J. No. 1442 (F.C.T.D.), assessed costs should bear a reasonable relationship to the actual costs of the litigation ie., counsel fees were billed here at $435.00 per hour.
Assessment
[4] I concluded at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen, 2002 FCT 999, that the same point in the ranges throughout the Tariff need not be used, as each item for the services of counsel is discrete and must be considered in its own circumstances. As well, I concluded that broad distinctions are required between an upper versus lower allowance from ranges such as here of 4 - 7 and 2 - 3 units for items 19 and 22 respectively. I allow 6 units for item 19. An appearance at a hearing necessarily includes some time in the courtroom identifying oneself with the Court Registrar and waiting for the call of the case, none of which is preparation time addressed by other items. Therefore, the abstract of hearing is a useful, but not absolute, guide for attendance at hearing. The record satisfies me that the claim of 8½ hours at 3 units per hour is reasonable for item 22 in these circumstances. The wording in the Tariff for item 24 addresses indemnification for the travel time of counsel, but does not limit my jurisdiction for associated travel disbursements. In the circumstances, I allow the travel disbursements for both counsel as presented.
[5] The bill of costs of the Respondents, presented initially at $9,165.92 and then reduced to $6,992.67, is assessed and allowed at $6,882.67.
(Sgd.) "Charles E. Stinson"
Assessment Officer
DATED at Vancouver, British Columbia, the 29th day of November, 2002.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-36-98
STYLE OF CAUSE: Apotex Inc. and Merck & Co. Inc. et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: CHARLES E. STINSON
DATED: November 29, 2002
SOLICITORS OF RECORD:
Goodmans LLP for Appellant
Toronto, ON
Gowling Lafleur Henderson LLP for Respondents
Ottawa, ON