Date: 19980909

Docket: A-658-95

(T-2991-93)

CORAM:      MARCEAU J.A.

         ROBERTSON J.A.

         McDONALD J.A.

BETWEEN:

     PHARMACIA INC. AND FARMATALIA

     CARLO ERBA S.R.L.

     Appellants

     (Applicants)

     - and -

     DAVID BULL LABORATORIES (CANADA) INC.

     and THE MINISTER OF NATIONAL HEALTH AND WELFARE

     Respondents

     (Respondents)

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Toronto, Ontario,

     on Wednesday, September 9, 1998)

MARCEAU J.A.

[1]      We are all of the view that this appeal from a decision of the Trial Division allowing an application brought under former rule 344(7) is partly founded.

[2]      We do not believe that the motions judge, in awarding costs on a party-and-party basis, could have proceeded on an erroneous principle of law, misapprehended the facts or been influenced by irrelevant considerations. He could find in his discretion " and his reasons, read in context, show that he so found " the special reasons required by former rule 1618 to award costs on a judicial review application on the fact that the proceedings here were more akin to private litigation and given that the appellant"s originating motion was completely devoid of any substantial particulars capable of clearly supporting the prohibition relief sought. His award of costs to the respondent on a party-and-party basis should not be interfered with.

[3]      We cannot accept, however, that the motions judge could, in fairness, depart from the normal party-and-party costs provided by Tariff B as it stood prior to September 1, 1995, that is to say as provided by the rules when the application was made and argued. To allow costs in excess of the then normal applicable standard would have required an express finding of further special reasons and there was no such finding and none were possible after an acknowledgement that the respondent had raised "responsible" arguments in support of its application.

[4]      On the other hand, it is clear to us that the motions judge had absolutely no basis to order that the Minister be responsible for any of the costs, his conduct, procedurally speaking, having been in no way reprehensible.

[5]      The appeal will therefore be dismissed with respect to the award of costs to the respondent David Bull on a party-and-party basis, but it will be allowed as to the requirement that these costs be determined otherwise than as provided by Tariff B of the former rules. There shall be no costs on this part of the appeal, both the appellant and David Bull having been successful in part.

[6]      The appeal against the decision of the motions judge refusing to award costs against the Minister is dismissed, however, with costs.

     "Louis Marceau"

     J.A.

Date: 19980909

Docket: A-658-95

(T-2991-93)

CORAM:      MARCEAU J.A.

         ROBERTSON J.A.

         McDONALD J.A.

BETWEEN:

     PHARMACIA INC. AND FARMATALIA

     CARLO ERBA S.R.L.

     Appellants

     (Applicants)

     - and -

     DAVID BULL LABORATORIES (CANADA) INC.

     and THE MINISTER OF NATIONAL HEALTH AND WELFARE

     Respondents

     (Respondents)

Heard at Toronto, Ontario, on Wednesday, September 9, 1998.

Judgment rendered from the Bench on Wednesday, September 9, 1998.

REASONS FOR JUDGMENT OF THE COURT BY:      MARCEAU J.A.

    

     FEDERAL COURT OF APPEAL

    

Date: 19980909

Docket: A-658-95

BETWEEN:

     PHARMACIA INC. AND FARMATALIA

     CARLO ERBA S.R.L.

     Appellants

     (Applicants)

     - and -

     DAVID BULL LABORATORIES (CANADA) INC.

     and THE MINISTER OF NATIONAL HEALTH

     AND WELFARE

     Respondents

     (Respondents)

    

     REASONS FOR JUDGMENT

     OF THE COURT