Date: 20040805
Docket: T-660-02
Citation: 2004 FC 1075
Ottawa, Ontario, this 5th day of August, 2004
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
ASTRAZENECA CANADA INC.
Applicant
- and -
APOTEX INC.,
TAKEDA CHEMICAL INDUSTRIES, LTD.
and THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
[1] On April 29, 2004, the Court dismissed with costs AstraZeneca's application for an order prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex with respect to its 10mg and 20mg Apo-Omeprazole tablets until the expiration of Canadian patent number 1,338,377.
[2] Apotex now seeks an order pursuant to Rule 403 of the Federal Court Rules, 1998 directing that its costs be fixed on a solicitor and client basis at a lump sum of $201,741.95 (inclusive of disbursements and GST). Apotex submits that it was successful on each and every one of the arguments raised by AstraZeneca, that the size of the market at stake was extremely important and that the entirely unsupported and vexatious allegation of lack of credibility made against Dr. Sherman warrant the imposition of such costs or of a significant percentage thereof (75% or 50%).
[3] In addition, Apotex argues that in the ordinary course, a party and party award should reimburse the successful party for approximately fifty percent of its solicitor and clients' fees plus all the disbursements reasonably incurred. The respondent says that the Court should, in exercising its discretion, award a lump sum in lieu of assessed costs in order to avoid the necessity of a detailed taxation.
[4] Apotex submitted an affidavit by Mr. Radomsky attesting to the necessary and reasonable disbursements incurred by Apotex in this litigation ($23,227.40 inclusive of GST) and a draft of a bill of costs based on column V of Tariff B.
[5] AstraZeneca says that this Court has no jurisdiction to vary or change the basis on which it granted its costs to Apotex. In this instance, the Court granted those costs on a party and party basis (Rule 407) thus, the Court could not now grant them on a solicitor and client basis.
[6] AstraZeneca also submits that this Court lacks jurisdiction to award such solicitor and client costs for motions in respect to which costs have already been determined and that, in any event, there was no reprehensible or scandalous conduct on its part that would justify the imposition of solicitor and client costs or of the significant percentage thereof sought by Apotex. The applicant contests the argument that normally taxable costs should represent at least 50% of the solicitor and client fees. On the contrary, it says that column III of Tariff B has been used to assess costs in other intellectual property cases involving more complex issues and a lot more work.
[7] A motion under Rule 403 is to be considered a statutorily sanctioned procedure for the amendment or variation of a judgment (Consorzio Del Prosciutto Di Parma v. Maple Leaf Meats, [2002] F.C.J. No. 451 (F.C.A.) QL and AB Hassle et al. v. Genpharm Inc.2004 FC 892, [2004] F.C.J. No. 1087 at para. 8).
[8] There are no restrictions in Rule 403 that would enable me to decline jurisdiction in respect of Apotex's current request. Subparagraph (2) simply says that such motion may be brought "whether or not the judgment included an order concerning costs".
[9] As to the Court's jurisdiction with respect to costs granted on motions decided before the hearing of the application, there is no need to deal with the issue here because I am not willing in this particular case to grant Apotex its costs on a solicitor and client basis.
[10] The Court has full discretion to depart from Tariff B, however, such discretion must be used prudently. Although actual solicitor and client fees may be taken into consideration when appropriate, the Tariff B should also always be considered.
[11] I am not satisfied after considering all the factors set out in Rule 400(3) and particularly subparagraph 400(3)(k) and the case law relied upon by Apotex that this is an exceptional case that warrants the imposition of solicitor and client fees or a significant increase in the cost to be paid by AstraZeneca. In fact, I do not believe that all things considered, this case warrants a significant departure from Tariff B, column III.
[12] I do agree, however, that the Court should take this opportunity to avoid any further costs to the parties by fixing an all-inclusive lump sum.
[13] In that respect, the Court considered the arguments raised by AstraZeneca with respect to the disbursement incurred on Apotex's failed motion for summary dismissal before Prothonotary Lafrenière and the lack of details provided in relation to the disbursement said to be necessary and appropriate for this litigation. But, as mentioned by the Court of Appeal in Consorzio above, the fixing of costs by the Court is not a precise accounting exercise and I am satisfied that a lump sum of $60,000.00 (inclusive of costs, disbursements and applicable GST) is appropriate in this case. This amount includes the costs associated with the present motion.
ORDER
The motion is granted in part. Apotex's costs are fixed at a lump sum of $60,000.00 (inclusive of fees, disbursements and applicable GST).
"Johanne Gauthier"
FCJ
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Astrazeneca Canada Inc. v.
Apotex Inc., Takeda Chemical Industries Ltd. and the Minister of Health
Toronto, ON
DATE OF HEARING: July 20, 2004
APPEARANCES:
Mr. Andrew Brodkin FOR RESPONDENT,
APOTEX INC
SOLICITORS OF RECORD:
Smart & Biggar
Goodmans LLP
APOTEX INC.
Gowling Lafleur & Henderson LLP
Ottawa, ON FOR RESPONDENT, TAKEDA CHEMICAL INDUSTRIES LTD.
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT, MINISTER OF HEALTH