GLAXOSMITHKLINE INC. v. BEECHAM GROUP p.l.c., 2011 FC 306

Federal Court Cour fédérale Date: 20110314 Docket: T-1687-09 Citation: 2011 FC 306 Toronto, Ontario , March 14, 2011 PRESENT: The Honourable Mr. Justice Hughes BETWEEN: GLAXOSMITHKLINE INC. and BEECHAM GROUP p.l.c. Applicants and PHARMASCIENCE INC. and THE MINISTER OF HEALTH Respondents REASONS FOR ORDER AND ORDER AS TO COSTS [ 1 ] In my Reasons and Judgment dated March 1, 2011 ( 2011 FC 239 ) I set out my disposition as to costs subject to any further comments from Counsel.

I have now received these comments. [ 2 ] Counsel for Pharmascience writes that an offer was made not to proceed with the cross-examination of Dr. Jurs if his affidavit was withdrawn. That affidavit was not withdrawn and the cross-examination proceeded.

GlaxoSmithKline​s Counsel writes that the offer was not a real offer, that the effort in preparing the affidavit had already been made, and that the subsequent cross-examination was in reality a fishing expedition. [ 3 ] Pharmascience​s Counsel wants costs and disbursements of the Jurs cross-examination on an increased scale plus a credit for two hours of time at the hearing before me. GlaxoSmithKline​s Counsel opposes all of that. [ 4 ] The time spent at the hearing on Dr. Jurs and his evidence, which was directed to what was termed the Log P issue, was trivial.

GlaxoSmithKline did have to expend the effort and cost in preparing the affidavit. However, GlaxoSmithKline should have considered more seriously Pharmascience​s offer and later, in dealing with costs, asked for costs of the withdrawn affidavit. This did not happen. The cross-examination was conducted.

[ 5 ] I will award Pharmascience the costs of conducting the cross-examination of Dr. Jurs, and related disbursements, assessed at the same scale as GlaxoSmithKline​s costs. These costs are to be set-off against costs otherwise taxed by GlaxoSmithKline. ORDER THIS COURT ORDERS that 1. Costs of the cross-examination of Dr. Jurs, and related disbursements, are awarded to Pharmascience 0n the same scale as costs awarded to the Applicants and are to be set-off against costs taxed by the Applicants pursuant to my Judgment of March 1, 2011. "Roger T.

Hughes" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1687-09 STYLE OF CAUSE: GLAXOSMITHKLINE INC. and BEECHAM GROUP p.l.c. v. PHARMASCIENCE and THE MINISTER OF HEALTH PLACE OF HEARING: Toronto , Ontario DATES OF HEARING: February 15, 2011 to February 17, 2011

REASONS FOR JUDGMENT AND JUDGMENT BY: HUGHES J. DATED: March 1 , 2011 APPEARANCES : Peter Wilcox FOR THE APPLICANTS Carol Hitchman FOR THE RESPONDENT PHARMASCIENCE INC. No One FOR THE FOR THE RESPONDENT MINISTER OF HEALTH SOLICITORS OF RECORD : Torys LLP Toronto, Ontario FOR THE APPLICANTS Gardiner Roberts LLP Toronto , Ontario FOR THE RESPONDENT PHARMASCIENCE INC. Myles J. Kirvan Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT MINISTER OF HEALTH