Novartis Pharmaceuticals Canada Inc. v. Teva Canada Limited. 2015 FC 1123 (O’Reilly, J.)
September 28, 2015
Anthony G. Creber and Alexander Gloor of Gowling Lafleur Henderson LLP for the Applicant Novartis Pharmaceuticals Canada Inc.
David W. Aitken, Marcus Klee, and Scott Beeser of Aitkeen Klee LLP for the Respondent Teva Canada Limited and Minister of Health
No one for the Respondent Minister of Health (William F. Pentney is solicitor of record)
No one for the Respondent Novartis AG as Patentee (Gowling Lafleur Henderson LLP is solicitor of record)
This was an application for costs by Novartis Pharmaceuticals Canada Inc. (“Novartis”) relating to obtaining a prohibition order under the Patented Medicines (Notice of Compliance) Regulations. The Court awarded costs at the upper end of Column IV in the amount of $102,512.00 and disbursements in the amount of $215,727.57.
Novartis applied for an order granting 60 percent of actual costs on a partial indemnity basis. Novartis’s claimed full costs were $950,468.40 in fees plus $242,642.55 in disbursements. In the alternative, Novartis applied for a lump sum calculated on the upper end of Column IV ($112,592.00 plus the disbursements). Novartis supported its application with reference to the breadth of Teva Canada Limited (“Teva”)’s notice of allegation (the “NOA”), the length of Teva’s expert affidavits, Teva’s cross-examination of all of Novartis’ witnesses, Teva abandoning allegations at the hearing, Teva’s allegations extending beyond the NOA, and unfounded allegations of fraud.
Teva argued that Novartis’ request for indemnity is unprecedented, that the proceedings were not exceptionally complicated, that the NOA was not excessively broad, and that there were no allegations of fraud. Teva also took issue with specific items in the disbursements and some details of Novartis’ calculations under Column IV. Novartis conceded that the correct tariff amount under Column IV was $102,512.00.
The Court rejected Novartis’ claim for partial indemnity and distinguished the present case from Air Canada v. Toronto Port Authority et al, 2010 FC 1335. However, the Court also recognized that obtaining a prohibition order requires an inherently complex proceeding and awarded costs at the upper end of Column IV, with some adjustments to Novartis’ claimed disbursements.
By: David Wood, Borden Ladner Gervais LLP