ELI LILLY CANADA INC. Applicant v. TEVA CANADA LIMITED AND, 2013 FC 621

Date: 20130607 Docket: T-689-11 Citation: 2013 FC 621 Ottawa , Ontario , June 7, 2013 PRESENT: The Honourable Mr. Justice Barnes BETWEEN: ELI LILLY CANADA INC. Applicant and TEVA CANADA LIMITED AND THE MINISTER OF HEALTH Respondents and ELI LILLY AND COMPANY AND TAKEDA PHARMACEUTICAL COMPANY LIMITED Respondent Patentees SUPPLEMENTARY REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The Applicant, Eli Lilly Canada Inc. (Lilly), seeks an Order for costs in connection with the Court’s earlier dismissal of the its Patented Medicines (Notice of Compliance) (NOC) application on the ground of mootness.

In my previous decision, I found that the application was moot because Teva Canada Limited (Teva) had withdrawn its Notice of Allegation (NOA). [ 2 ] I am satisfied that Lilly is entitled to an award of costs because Teva affectively triggered this application by filing a NOA: see Eli Lilly Canada Inc. v Novopharm , 2006 FC 781 , [2006] FCJ no 1002 . Lilly’s claim to counsel fees of $18,803.00 and disbursements of $84,422.00 is, however, excessive. [ 3 ] This matter was resolved in its early stages and before any exchange of expert evidence. An award under Column IV is, therefore, not justified.

Costs under Column III and reasonable disbursements up to the point of the withdrawal of Teva’s NOA are appropriate subject to an offset of $2,000.00 for Teva’s costs of successfully defending Lilly’s motion for a prohibition Order.

[ 4 ] Notwithstanding the early withdrawal of Teva’s NOA, it was prudent for Lilly to have retained expert witnesses in advance of receiving Teva’s evidence. The time frames that apply to NOC proceedings are tight and some anticipatory work with experts is to be expected. However, I have nothing before me to justify a claim to expert fees and expenses approaching $80,000.00. I have no idea how expert costs of that magnitude could reasonably be generated before any reports were written. I also have no explanation for why advance meetings with an expert witness in London and Ottawa were considered necessary.

I will allow $12,500.00 for expert costs including related disbursements. JUDGMENT THIS COURT’S JUDGMENT is that Lilly will have its costs of this application under Column III and its reasonable disbursements up to the point of the withdrawal of Teva’s Notice of Allegation. This figure shall be reduced by $2,000.00 representing Teva’s costs of successfully defending Lilly’s motion for a prohibition Order. THIS COURT’S FURTHER JUDGMENT is that Lilly is entitled to recover $12,500.00 for its disbursements in connection with the retention of expert witnesses in this proceeding. "R.L.

Barnes" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-689-11 STYLE OF CAUSE: ELI LILLY CANADA INC. v TEVA CANADA LIMITED ET AL PLACE OF HEARING: Ottawa, ON DATE OF HEARING: January 8, 2013 REASONS FOR JUDGMENT: BARNES J. DATED: June 7, 2013 APPEARANCES :

Anthony Creber and Livia Aumand FOR THE APPLICANT AND RESPONDENT PATENTEES ELI LILLY CANADA INC. Jonathan Stainsby FOR THE RESPONDENT TEVA CANADA LIMITED Christopher VanBarr FOR THE RESPONDENT PATENTEES TAKEDA PHARMACEUTICAL COMPANY LIMITED SOLICITORS OF RECORD : Gowling Lafleur Henderson LLP Ottawa , ON FOR THE APPLICANT AND RESPONDENT PATENTEES ELI LILLY CANADA INC. Heenan Blaikie LLP Toronto , ON FOR THE RESPONDENT TEVA CANADA LIMITED William F. Pentney Deputy Attorney General of Canada Toronto , ON FOR THE RESPONDENT THE MINISTER OF HEALTH Gowling Lafleur Henderson LLP Ottawa , ON FOR THE RESPONDENT PATENTEES TAKEDA PHARMACEUTICAL COMPANY LIMITED