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Don’t Ask, Don’t Get – Costs on Motions in the Federal Court

On September 18, 2015, Justice Leblanc granted an appeal of a decision of Prothonotary Tabib awarding Eli Lilly costs on a motion for a Protective and Confidentiality Order.

Apotex did not contest Lilly’s underlying motion for a Protective Order, and Lilly did not seek costs. Prothonotary Tabib granted the Protective Order, and directed each party to propose their respective redactions to portions of the application record. Prothonotary Tabib accepted all of Lilly’s proposed redactions, but found many of Apotex’s redactions to be excessive and unfounded. She awarded costs to Lilly in the amount of $3000. Apotex appealed the costs award.

On appeal, Justice LeBlanc noted that discretionary orders of prothonotaries are not to be disturbed unless they are clearly wrong, but found that the Court was bound by the FCA decision in Exeter v. Canada (Attorney General), 2013 FCA 134, in which the FCA held that awarding costs when none are requested would amount to a breach of the duty of fairness. Justice Leblanc granted the appeal solely on the basis of the authority in Exeter:

[17]  In these circumstances, I am bound by the Federal Court of Appeal’s decision in Exeter, above, and therefore feel compelled to conclude that although a costs award in the circumstances described by Prothonotary Tabib would otherwise have been a wholly appropriate exercise of discretion, costs should not have been awarded in the present case as they were not requested.  For this reason, and for this reason alone, I find that the impugned costs order was based upon a wrong principle and cannot be allowed to stand.

A copy of the order and reasons can be found here.