Court of Appeal for Ontario

DATE: 20220829 DOCKET: C69320

Strathy C.J.O., Roberts and Sossin JJ.A.

Parties

BETWEEN

Apotex Inc. and Apotex Pharmachem Inc. Plaintiffs (Appellants)

and

Eli Lilly Canada Inc., Eli Lilly and Company, Eli Lilly and Company Limited and Eli Lilly SA Defendants (Respondents)

Counsel

Harry Radomski, Andrew Brodkin, Nando De Luca and Jerry Topolski, for the appellants Marc Richard, Alexander Gloor and Rebecca Johnston, for the respondent

Heard: February 17, 2022, by videoconference

On appeal from the order of Justice Paul B. Schabas of the Superior Court of Justice dated March 8, 2021, with reasons reported at 2021 ONSC 1588, and from the costs order dated April 27, 2021, with reasons reported at 2021 ONSC 3111.

Costs Endorsement

[1] On August 16, 2022, we dismissed the appellants’ appeal and invited written submissions if the parties could not agree on the disposition of the costs of the appeal. They could not. We have received and reviewed the parties’ respective submissions.

[2] It is common ground that costs should follow the result and that the respondents are entitled to their reasonable, fair, and proportionate partial indemnity costs of the appeal. The issue is quantum.

[3] The respondents claim the all-inclusive amount of $157,590.85. The appellants submit the amount should be $25,000, which was the amount they proposed to the respondents prior to the release of our reasons dismissing the appeal.

[4] We agree that based on the materials before us, the amount of costs that is reasonable, fair, and proportionate and within the parties’ reasonable contemplation for the losing party to pay is $25,000, inclusive of disbursements and applicable taxes.

[5] In our reasons disposing of the appeal, we set out clear directions concerning the requirements for adequate costs submissions. Unfortunately, the respondents did not heed those directions but repeated the approach to costs before the motion judge that we found was inadequate. Specifically, we are left with bald assertions that fail to explain why several hundreds of hours were spent by numerous individuals on issues that, while important to the parties, largely repeated the submissions handily addressed by the motion judge. We are therefore unable to ascertain whether the amount of time spent is reasonable or denotes unnecessary duplication of effort and over-preparation.

[6] The respondents submit that their claimed amount represents the amount of costs that would be within the appellants’ reasonable contemplation if they lost the appeal. We disagree. The appellants’ offer to settle the appeal on the basis that the losing parties pay $25,000 in costs is the best evidence we have of what the appellants reasonably contemplated and absent more cogent explanation by the respondents, represents the amount of costs that is reasonable, fair, and proportionate in the circumstances of this case.

[7] Accordingly, we order that the appellants pay the respondents the amount of $25,000, inclusive of disbursements and applicable taxes.

“G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.”