Glaxo Group Ltd. v. Novopharm Ltd.
T-431-94
Evans J.
12/10/99
12 pp.
Awards of costs in connection with three motions arising from action for patent infringement instituted in 1994 by plaintiffs referred to as Glaxo against generic pharmaceutical manufacturers including Novopharm-Motions resulting from refusal to answer 3,000 questions put to named inventor, two representatives of Glaxo in course of examination for discovery-Most of questions "taken under advisement" by counsel for Glaxo, subsequently refused-Other questions objected to when asked-Motion brought by Novopharm to require Glaxo to answer questions refused, to produce documents for which asked-Motion argued before Giles A.S.P.-Latter ordering Glaxo to pay Novopharm's costs in any event of cause, awarding costs at high level-Law of costs evolving, now allowing Court to award costs on motion irrespective of outcome of trial-Costs award on motion can be made in order to promote expeditiousness in conduct of litigation-In taking under advisement, objecting to 3,000 questions, position taken on behalf of Glaxo at examination caused significant delays in getting matter to trial, imposed unnecessary expense on Novopharm, consumed undue quantity of scarce judicial resources-For counsel to have taken so many questions under advisement in effect avoided requirement in Rules ground must be given for objecting to question, thus deprived counsel for Novopharm of opportunity to reformulate questions in order to meet objection-R. 400(3) listing factors that may be taken into account in exercise of Court's discretion to award costs-Appropriate to use award of costs to make it clear Court strongly disapproves of unreasonable position taken on behalf of party, wishes disapproval to be understood in profession so as to discourage repetition in future-Glaxo's motion appealing from A.S.P.'s award of costs in order dated January 11, 1999 dismissed-Novopharm's motion appealing A.S.P.'s refusal to require certain questions put by Novopharm be answered-Conduct of counsel for Glaxo at examination so added to length, expense of proceedings, hindered Novopharm's right to effective examination for discovery that award of party and party costs in any event of cause fully justified in respect of appeal motion as well-Novopharm also appealing A.S.P.'s order awarding costs in cause in connection with motion to settle substance, form of order made on motion to require production-A.S.P. took into account previous award of costs, decided sufficiently onerous in view of Glaxo's conduct-Did not err in exercising discretion to award costs in cause-Appeal dismissed-Federal Court Rules, 1998, SOR/98-106, r. 400.