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Date: 20050118
Docket: A-437-04
Citation: 2005 FCA 23
CORAM: LÉTOURNEAU J.A.
BETWEEN:
APOTEX INC.
Appellant (Plaintiff/Defendant by Counterclaim)
and
MERCK & CO. INC. and MERCK FROSST CANADA INC.
Respondents (Defendants/Plaintiffs by Counterclaim)
Heard at Ottawa, Ontario, on January 18, 2005.
Order delivered from the Bench at Ottawa, Ontario, on January 18, 2005.
REASONS FOR ORDER OF THE COURT BY: PELLETIER J.A.
Date: 20050118
Docket: A-437-04
Citation: 2005 FCA 23
CORAM: LÉTOURNEAU J.A.
BETWEEN:
APOTEX INC.
Appellant (Plaintiff/Defendant by Counterclaim)
and
MERCK & CO. INC. and MERCK FROSST CANADA INC.
Respondents (Defendants/Plaintiffs by Counterclaim)
REASONS FOR ORDER OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on January 18, 2005)
[1] These reasons dispose of the respondents' oral motion for costs following the discontinuance of the appeal in File No. A-437-04.
[2] The appellant did not communicate its intention to discontinue its appeal until the eve of the hearing. As a result, counsel for the respondents (and the Court) did all the work required to deal with the appeal, work which became superfluous once the appeal was discontinued.
[3] Counsel for the appellant regrets the late notice but argues that his client ought not to be penalized for having the judgment and the courtesy to avoid putting the Court and the respondents through the trouble of dealing with an appeal which was unlikely to succeed. He says that if the appeal had been argued, the respondents would only have received their costs on the party and party scale. He argues that it would be anomalous for the respondents to do better on the issue of costs following discontinuance than they would have if the appeal had been heard.
[4] Counsel is right that his client ought not to be penalized for exercising judgment with respect to the hearing of the appeal. On the other hand, it is clear from the discontinuance that if that same judgment had been applied to the bringing of the appeal, the subject of costs would not arise at all. Counsel's assumption that costs would only have been awarded on the party and party scale had the appeal been heard is not sound. Given that the Court has full discretionary power over the amount and allocation of costs (Rule 400), it could have entertained a motion for an award of costs in a lump sum following the hearing of the appeal. The amount awarded as a result of such a motion would not necessarily have corresponded with the amount assessed by an assessment officer.
[5] Having regard to all the facts, including the fact that a hearing was not required, we fix the costs of the appeal at $12,000.
"J.D. Denis Pelletier" J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-437-04
APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED AUGUST 16, 2004 NO. T-294-96
STYLE OF CAUSE: Apotex Inc. v. Merck & Co. Inc. and Merck Frosst Canada Inc.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 18, 2005
REASONS FOR ORDER OF THE COURT: Létourneau, Sexton, Pelletier JJA
DELIVERED FROM THE BENCH BY: Pelletier J.A.
APPEARANCES:
SOLICITORS OF RECORD:
Ottawa, Ontario
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