CITATION: Apotex Inc. v. Pfizer Ireland Pharmaceuticals 2016 ONSC 7992
DIVISIONAL COURT FILE NO.: 420/16
DATE: 20161219
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: APOTEX INC. v. PFIZER IRELAND PHARMACEUTICALS and PFIZER CANADA INC.
BEFORE: NORDHEIMER J.
COUNSEL: R. Sutton, R. Agarwal & S. Taylor, for the moving parties/defendants
H. Radomski & N. De Luca, for the responding party/plaintiff
HEARD at Toronto: written submissions
ENDORSEMENT – COSTS
[1] On November 18, 2016, I dismissed the defendants’ motion for leave to appeal from the decision of Lederman J. dated August 8, 2016 in which the motions judge dismissed, with two exceptions, Pfizer’s motion to strike out various claims, made by Apotex, on the grounds that they do not disclose a reasonable cause of action, pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] I have now received the parties’ costs submissions. Apotex seeks costs in the amount of $40,000 on a substantial indemnity basis. It seeks costs on this higher scale as a result of the fact that it offered to settle the motion on the basis that the defendants would abandon their motion and there would be no costs of the motion.
[3] The defendants submit that the costs should be fixed at an amount of $7,500. They submit that the motion is “straightforward” – not a surprising position for the losing party on a motion to take.
[4] I do not agree with Apotex that its offer to settle warrants a costs award on the higher scale. First, the offer to settle is not a true compromise of the matter. It is essentially just an offer to permit the defendants to capitulate. Second, the offer does not raise the presumptive costs consequences in r. 49.10 because the offer was not open to the commencement of the motion.
[5] In terms of the quantum of costs, the underlying action is a significant piece of litigation involving large sums of money and large corporations. These facts impact on the reasonable expectation of the parties regarding costs. The issues raised in the action are also of some complexity. These are both factors to be considered in fixing costs: r. 57.01(1).
[6] There have been costs awards in earlier motions for leave to appeal involving these same parties in different proceedings. I do not share Apotex’s concerns about those costs awards becoming a “sort of benchmark”. To some degree, benchmark costs awards are valuable insofar as they provide litigants with some idea of the costs consequences of taking various steps in a proceeding. There is also some benefit to costs awards that are consistent from one proceeding to another.
[7] In the end result, I fix the costs of this motion for leave to appeal at $10,000 inclusive of disbursements and HST to be paid by the defendants to Apotex within thirty days.
NORDHEIMER J.
DATE: December 19, 2016