Date: 19980414
Docket: T-470-96
BETWEEN:
ALZA CORPORATION and BAYER INC.
Applicants
- and -
APOTEX INC. and THE MINISTER OF
NATIONAL HEALTH AND WELFARE
Respondents
REASONS FOR ORDER
[Delivered from the Bench at Ottawa, Ontario
on Tuesday, April 14, 1998]
MCGILLIS, J.
[1] On March 11, 1998, Hugessen, J.A. issued an order requiring the applicants to show cause, on or before April 15, 1998, why the application should not be dismissed for undue delay in prosecuting it. As of today's date, the applicants have not responded to the show cause order. However, on April 6, 1998, the applicants filed a motion requesting an order prohibiting the Minister of National Health and Welfare from issuing a notice of compliance to the respondent Apotex Inc. ("Apotex"). In bringing that motion, the applicants sought to have the Court make a determination on the merits of the application.
[2] As a preliminary matter, counsel for Apotex argued that the Court ought not to entertain the applicants' motion at this stage of the proceedings. In particular, he submitted that the applicant should not be permitted to take any further steps in this matter pending the disposition of the outstanding show cause order. I agree with that submission. In my opinion, it would be inappropriate to deal with the matter on its merits until the applicants have satisfied the Court that the application should not be dismissed by reason of their undue delay in prosecuting it.
[3] The motion is therefore adjourned sine die pending the disposition by the Court of the outstanding show cause order.
[4] Counsel for Apotex requested that the Court award costs in the amount of $3,000.00 against the applicants on the present motion. In support of his request, he noted that counsel for the applicants had made the motion returnable in Ottawa, even though both counsel practice in Toronto, in an attempt to have the Court adjudicate on the merits of the application prior to the expiry of the April 15, 1998 deadline in the show cause order. Counsel for Apotex was therefore required to incur expenses by travelling to Ottawa for the motion. Counsel for Apotex further advised the Court that the applicants' counsel had refused to consent to an adjournment of the motion. As a result, counsel for Apotex was required to spend time preparing to argue the merits of the application, despite the outstanding order requiring the applicants to show cause why their application should not be dismissed for undue delay.
[5] In the circumstances, I agree with counsel for Apotex that it would be just to award costs against the applicants. In determining the appropriate quantum of costs, I have considered several factors, including the serious inconvenience caused to counsel for Apotex and the unnecessary expenses generated by the procedural tactics employed by counsel for the applicants. In my opinion, it would be just to award costs in the amount of $1,500.00.
[6] Costs are therefore awarded against the applicants in the amount of $1,500.00, payable forthwith.
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