PRACTICE |
Costs |
Merck & Co. Inc. v. Apotex
T-2408-91
2002 FCT 842, Stinson A.O.
7/8/02
30 pp.
Taxation--Cost of expert--Plaintiffs successful at trial concerning infringing sale of drugs--Referee awarding costs of reference on party-and-party basis--Plaintiffs electing accounting of profits as opposed to damages--Major issues in plaintiffs' bill of costs relating to necessity and amount of charges for services of forensic accounting expert to analyse, advise counsel, and prepare to give evidence concerning defendants' figures for infringing sales--Defendant's position that no costs, or reduced costs payable because defendant disclosed sales data requiring no additional analysis, plaintiff's expert not required for issues at reference, some of experts' work predating award for costs, amounts claimed excessive and unreasonable as expert's work was work of counsel disguised to permit full indemnity--Plaintiffs' position that conduct of defendant and nature of disclosed data requiring expert to establish validity of figures--Bill of costs presented at $293,452 reduced to $248,223--Tariff B of Federal Court Rules, 1998, having different levels of recovery and range of cost units providing flexibility so award reasonably reflects costs incurred in litigation but not defraying actual costs in full--Appropriate threshold for test of necessity for disbursement lies within circumstances existing at time decision to incur cost made--Assessment officer disagreeing with Canadian Express Ltd. v. Blair (1992), 8 O.R. (3d) 769 (Gen. Div.) where costs of preparation time of experts denied--Preparation costs of experts should depend on circumstances of each case--Circumstances of reference of accounting of profits may necessitate assistance of forensic accountant from initial stages of reference events throughout document discovery, examination for discovery, preparation of expert affidavits, analysis of adverse experts, evaluation of settlement offers and attendance at hearing to testify, advise and evaluate--Referee declining to particularize instruction for assessment of experts--Discretion threshold that of reasonable necessity--Circumstances of reference justified assessable costs for broader use of expert beyond issues remaining at instant reference hearing opened--Dollar implications for reference, in context of election for accounting of profits, not restricted to interest calculations but extending to several hundred thousand dollars associated with raw materials, production costs, administration and sales of several million dollars--Amounts reduced where assessment officer finding amount invoiced not reasonable in circumstances--Federal Court Rules, 1998, SOR/98-106, Tariff B.