Assessment of the Costs Associated with Experts in an NOC Proceeding
Abbot Laboratories et al. v. Apotex Inc. et al. 2009 FC 399 (Parent, Assessment Officer)

April 21, 2009

Ariel N. Neuer for the Applicants, Abbott Laboratories and Tap Pharmaceuticals Inc.
David E. Lederman for the Respondents, Apotex Inc. (“Apotex”)

Abbot filed a Notice of Application under Section 55.2 of the Patented Act and Section 6 of the Patented Medicines Regulations, seeking an order prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex for Apo-lansoprazole capsules. Apotex filed a motion to dismiss the application which was heard and granted on the same day that the application was to be heard.  Costs were granted to Apotex.

The Assessment Officer reviewed the Respondents’ bill of costs and summarized applicable principles dealing with the items claimed under Tariff B of the Federal Courts Rules. Of note was the Assessment Officer’s review of costs associated with the preparation of expert affidavits and expert fees.

Apotex claimed under Item 2 of the Federal Courts Rules separate units for the preparation and filing of each expert affidavit. The Assessment Officer allowed only a single Item 2 fee on the basis that the key words in Item 2, “Preparation …of all…respondents’ records and materials”, would embrace all expert affidavits.

In assessing expert fees, the Assessment Officer considered the benchmarking approach whereby expert fees are obtained by averaging the time spent for all experts on the case and the approach of limiting the rates charged by the experts to the rate of senior counsel on the file. The Assessment Officer did not adopt either approach and instead, followed the general principle that expert fees must have been reasonable and necessary. The Assessment Officer disallowed the fees of one expert who collaborated with a second expert to assist in the preparation of the affidavit of the second expert on the basis that there was no evidence to show that the services of the first expert were necessary to advance Apotex’s position.

By: Rosamaria Longo, Lang Michener LLP