Disbursement Assessment Highlighting the Importance of Thorough Documentation
Fournier Pharma Inc. v. Canada (Minister of Health), 2009 FC 1004 (Stinson, Assessment Officer)

October 2, 2009

Michal Niemkiewicz for the Applicants, Fournier Pharma Inc. and Laboratoires Fournier S.A. (“Fournier”)
David E. Lederman for the Respondent, Apotex Inc. (“Apotex”)

Fournier sought an order prohibiting the Minister of Health from issuing a Notice of Compliance (NOC) to Apotex for 100mg or 160mg fenofibrate tablets for the treatment of cholesterol levels. Fournier discontinued its application and Apotex applied for solicitor-client costs of $306,865.45, including disbursements. In a prior Order (2007 FC 433), Prothonotary Lafrenière allowed a lump sum of $20,000 for counsel fees only and disallowed the entire claim for disbursements, citing insufficient evidence of their necessity and reasonableness. Apotex appealed to the Federal Court and the appeal was allowed (2008 FC 369). Heneghan J. found that, although the evidence was limited and consisted mainly of assertions of expenditures without supporting invoices or documents, the Prothonotary failed to consider what evidence there was, and in dismissing Apotex’s claim out of hand, he committed a reviewable error. Heneghan J. ordered that the issue of disbursements be remitted to an assessment officer. That assessment is the subject of the present decision.

In his assessment, Stinson, Assessment Officer emphasized the subjective elements and the “rough justice” that are inherent to an assessment of costs. It is notable that, while Heneghan J. held that Apotex had provided sufficient evidence to allow an assessment to be performed, Stinson did not by any means accept all of Apotex’s evidence at face value. His assessment was throughout informed by the stated need “to strike the appropriate balance between the right of a successful litigant to be indemnified for its reasonably necessary costs and the right of an unsuccessful litigant to be shielded from excessive or unnecessary costs.” Claimed disbursements for which the evidence was “less than absolute” were subjected to the Assessment Officer’s discretion and, in most cases, discounted from the claimed amount - including a $25,000 expert witness charge that was disallowed entirely. This assessment illustrates the importance of thorough documentation of the nature and purpose of all disbursements.

By: Eugene Derényi, Stikeman Elliott LLP