PRACTICE |
Costs |
Apotex Inc. v. Canada (Minister of National Health and Welfare)
A-684-99
Malone J.A.
23/11/00
9 pp.
Appeal from Trial Division order ((1999), 2 C.P.R. (4th) 512) granting Apotex's motion to dismiss within application as moot--Only order for solicitor-client costs now under appeal--Several errors of law alleged--No evidence of reprehensible, scandalous, outrageous conduct on part of Minister in connection with litigation itself--Motions Judge said to have erred in interpreting provisions of r. 400, basing decision on irrelevant considerations--R. 400 permitting award of solicitor-client costs in discretion of Motions Judge--Motions Judge failing to consider existing case law on basis new r. 400(1) now speaks in terms of full discretion--Confidentiality obligations binding Minister under privilege order overlooked--New r. 400(1) not conferring unfettered discretion--Solicitor-client costs generally awarded only where reprehensible, scandalous, outrageous conduct on part of one party--Nor should Motions Judge have ignored Crown's confidentiality obligations under privilege order of December 18, 1995--Suggestion by Motions Judge Minister took until February 3, 1998 before mistake acknowledged, corrected not supported by record--Notice of compliance (NOC) issued on February 3, 1998 without explanation, acknowledgement--Strength, weakness of Minister's explanation no basis for awarding solicitor-client costs--Conduct of Minister prior to October 24, 1997 application to compel production of NOC may be relevant in damages action commenced by Apotex against Crown--Apotex's solicitor--and--client costs can be included in prayer for special damages in action--Issuance of NOC discretionary under Patented Medicines (Notice of Compliance) Regulations--Award of costs on solicitor-client basis not justified by any misconduct during conduct of litigation--Appeal allowed--Federal Court Rules, 1998, SOR/98-196, r. 400--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133.