Monday, April 20, 2009

Costs: straight talk by Justice Hughes

I don’t think this says anything new, but costs in NOC proceedings were dealt with pretty straightforwardly by Justice Hughes in Eli Lilly Canada v. Apotex, 2009 FC 320. Apotex was successful in fending off Lilly’s request for a prohibition order. Note the comment regarding allegations of fraud:

[67] Apotex costs are to be assessed in accordance with the middle of Column IV. Two counsel, a senior and a junior, are allowed for at the hearing and, if in attendance, in conducting cross-examination. One counsel, a senior, is allowed in defending a cross-examination. No costs or disbursements are allowable for any other lawyers, in house or out house counsel, paralegals, students, clerical persons or any other persons other than the expert witnesses that I shall name whose evidence was made of record.

[68] The fees and disbursements actually paid by Apotex or its solicitors to Dr. McClelland and Dr. Williard are allowed provided that they are not disproportionately larger than those charged by the Applicant’s experts. No fees or disbursements allowed in respect of any other witness.

[69] As in some other proceedings of this kind, Apotex raised an allegation in its Notice of Allegation as to section 53 of the Patent Act, an allegation that is close to an allegation of fraud. This allegation remained in play at least until it did not appear in Apotex’s Memorandum of Argument. At the hearing Apotex’s counsel formally acknowledged that it did not rely on this allegation. Apotex’s counsel also assured the Court that the format of its more recent Notices of Allegation was changed to eliminate section 53 allegations. Nonetheless, Apotex’s counsel did not at any early stage in these proceeding notify the Applicant that it would not rely on section 53, a simple enough matter that could have been done by a letter. Therefore I will again direct that the fees and disbursements recoverable by Apotex shall be reduced by twenty-five percent having regard to the section 53 allegation.

Also, another plea for PM (NOC) reform:

[19] I endorse the sentiments expressed by Harrington J. of this Court in Lundbeck Canada Inc. v. Canada (Minister of Health), 2009 FC 146 at paragraph 74 where he wrote that we really do not have evidence by way of actual persons or even “talking heads” in proceedings such as this, we simply have words on pieces of paper. Other than in the most exceptional cases, a Court is not in a position to come to any conclusions as to whether certain witnesses were evasive, or acted as advocates or acted in other ways urged by counsel so as to encourage the Court to take a dim view as to demeanour of any other party’s witnesses. I add my voice to those crying in the wilderness for improvements in the process.

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