PRACTICE |
Costs |
AB Hassle v. Apotex Inc.
T-470-02
2004 FCA 398, Evans J.A.
10/11/04
15 pp.
Apotex alleging in Notice of Allegation (NOA) no claim in two use patents (668, 762 patents) owned, licensed by applicants would be infringed by it making, selling omeprazole tablets--Applicants' prohibition application dismissed "with costs to Apotex"--Apotex moving for order awarding it lump sum costs on solicitor-client scale in amount of $92,477.35 plus full disbursements for a total of $96,665.49 --Apotex claiming applicants should be sanctioned by award of solicitor-client costs because: (1) made unsubstantiated allegations NOA untrue; (2) attack on Apotex' witness' credibility tantamount to allegation of fraud; (3) raising virtually same issue, based on virtually same weak evidence rejected by O'Keefe J. in AB Hassle v. Canada (Minister of National Health and Welfare), [2002] 3 F.C. 221 (T.D.)-- Applicants' position Court without jurisdiction to award costs on solicitor-client basis, having made award "with costs", rejected--Apotex not barred in present motion from seeking lump sum award on solicitor-client basis--Federal Court Rules, 1998, s. 403 available in circumstances where Court had awarded "costs" without specification--Consideration of factors enumerated in Rules, s. 400 not justifying increase beyond what is provided for in Tariff B--Case not complex--Apotex not emphasizing amount of work performed as factor militating for increased costs--No amounts claimed, recovered--Fact one party's claim has little merit, "very weak", no basis for awarding solicitor-client costs-- Applicants' case not without merit--Increase above Tariff B, whether it be full, partial solicitor-client costs sought, not justified--Whether applicants should be sanctioned with solicitor-client costs because of attack on witness' credibility, on truthfulness of Apotex' NOA--Award of solicitor-client costs exception, generally awarded only where reprehensible, scandalous, outrageous conduct on part of one of parties-- Applicants had right to test credibility without fear of cost sanction--Apotex' costs to be taxed at upper level of column III in Tariff B--Apotex' motion for costs dismissed--Federal Court Rules, 1998, SOR/98-106, ss. 400 (as am. by SOR/ 2002-417, s. 25(F)), 403, Tariff B.