Date: 19980929
Docket: T-1727-97
| IN THE MATTER OF an application of an Order pursuant |
to section 55.2(4) of the Patent Act and Section 6 of the
Patented Medicines (Notice of Compliance) Regulations
BETWEEN:
MERCK & CO., INC. and
MERCK FROSST CANADA INC.
Applicants
AND:
NOVOPHARM LIMITED and
THE MINISTER OF HEALTH
Respondents
SUPPLEMENTARY REASONS FOR
ORDER REGARDING COSTS
GIBSON J.:
[1] My reasons in this matter filed on August 21, 1998, included the following paragraph:
| Counsel for both Merck and Novopharm, in their written submissions, requested an opportunity to make further submissions pursuant to Rule 400 et seq as to directions to be given to an assessment officer. Counsel for Novopharm will have fourteen (14) days from the date of my order herein to file and serve written submissions. Following service of such submissions, counsel for Merck will have fourteen (14) days to file and serve submissions. Following service thereof, counsel for Novopharm will have seven (7) days to file and serve reply submissions. Thereafter, I will consider whether or not to provide directions to the assessment officer dealing with the issue of costs in this matter. |
[2] I have received the submissions contemplated by the foregoing paragraph and have now had an opportunity to consider them. Counsel for the respondent Novopharm, the successful party, submits that I should exercise the Court"s discretion and fix costs in accordance with its submission based on Column V in Tariff B to the Federal Court Rules , 1998 or, alternatively, give directions to the Taxing Officer to award the amounts of requested fees and disbursements.
[3] Counsel for Merck & Co., Inc. and Merck Frosst Canada Inc. submits that there is insufficient evidence before the Court to justify variation from the ordinary scale of costs. Counsel submits:
| Novopharm should be required to file affidavit evidence to support its claim for costs, including disbursements, as well as its allegations relating to the any [sic] settlement offer. The Applicants should then be given an opportunity to file affidavit evidence in response to Novopharm"s evidence and to cross-examine Novopharm"s affiant. Only then can the questions of costs be determined. As such there is nothing before this Court upon which a determination can be made on the issue of the level of costs to be awarded to the Respondent Novopharm. |
[4] I am in agreement with the submission on behalf of Merck & Co., Inc. and Merck Frosst Canada Inc. that there is insufficient evidence before me to justify an order fixing costs above the ordinary scale or in providing directions to an assessment officer charged with the issue of dealing with costs in this matter.
[5] In the result, I decline to accept the submission on behalf of Novopharm that I fix costs or provide direction to an assessment officer other than as follows: on the basis of the material before me, costs should be fixed in accordance with the ordinary scale.
_______________________
Frederick E. Gibson
Ottawa, Ontario
September 29, 1998