In Eli Lilly Canada Inc v The Minister of Health et al, Justice Barnes awarded Hospira its costs against Eli Lilly in the amount of $495,000 plus interest.
Justice Barnes previously dismissed Eli Lilly’s application for an order prohibiting Hospira from receiving a Notice of Compliance for its pemetrexed product until the expiry of Canadian Patent No. 1,340,794 (see our previous post here).
Hospira brought a motion seeking a lump sum award of approximately $576,000. In the alternative, Hospira sought directions to facilitate an assessment of costs.
Eli Lilly proposed a lump sum award of approximately $317,000, which was calculated based on reduced legal fees and disbursements that were further reduced by 25% because of Hospira’s unproven allegation under section 53 of the Patent Act.
Justice Barnes concluded that a lump sum award of costs was appropriate. Because Hospira’s section 53 allegation was contingent on Lilly taking a position that it did not take, Justice Barnes concluded that a 25% reduction was not appropriate.
Justice Barnes reduced the amount sought by Hospira for three reasons. First, the complexity of the proceeding did not justify an award beyond the high end of Column IV of Tariff B to the Federal Courts Rules. Secondly, Hospira’s twelve attendances to meet with a single expert witness prior to his cross-examination were excessive. Thirdly, a reduction was made to reflect the “evidentiary gap” regarding the reasonableness of Hospira’s disbursements.
A copy of the decision may be found here.