Teva Canada Limited v. Leo Pharma Inc.

Teva Canada Limited v. Leo Pharma Inc.
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-03-14
Neutral citation
2017 FCA 51
File numbers
A-65-16
Notes
A correction was made on April 5, 2017
Decision Content
Date: 20170314
Docket: A-65-16
Citation: 2017 FCA 51
CORAM:
GAUTHIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
TEVA CANADA LIMITED
Appellant
and
LEO PHARMA INC. AND LEO PHARMA A/S
Respondents
and
THE MINISTER OF HEALTH
Respondent
Heard at Montréal, Quebec, on February 2, 2017.
Judgment delivered at Ottawa, Ontario, on March 14, 2017.
REASONS FOR JUDGMENT BY:
GAUTHIER J.A.
CONCURRED IN BY:
DE MONTIGNY J.A.
GLEASON J.A.
Date: 20170314
Docket: A-65-16
Citation: 2017 FCA 51
CORAM:
GAUTHIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
TEVA CANADA LIMITED
Appellant
and
LEO PHARMA INC. AND LEO PHARMA A/S
Respondents
and
THE MINISTER OF HEALTH
Respondent
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1] In the present appeal, the appellant, Teva Canada Limited, seeks to set aside the decision of the Federal Court (2016 FC 107) granting the respondent, Leo Pharma Inc., costs in the amount of $419,729.92 in respect of its successful application under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133. In its detailed reasons, the Federal Court disallowed a substantial portion of the amount claimed by Leo Pharma but it rejected the specific arguments raised before us by Teva in respect of additional deductions.
[2] Teva makes two alternative submissions. First, it requests that in the event its appeal on the merits of the Federal Court’s prohibition application is successful the costs award should be set aside. Second, it submits in the alternative that even if its appeal on the merits of the decision on the prohibition application is dismissed, the costs award should be reduced to deduct some or all of the amounts awarded for certain fees paid to Leo Pharma’s experts (Dr. Goldberg, Dr. Shear, and Dr. Blatter).
[3] As a discretionary decision, the Federal Court’s decision on costs is reviewable under the usual appellate standard of review set out in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33: factual determinations and matters of mixed fact and law which do not contain an extricable legal issue may be set aside only if the Federal Court made a palpable and overriding error whereas legal errors are subject to review for correctness: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at paragraphs 74-79.
[4] The first of Teva’s submission must be dismissed as its appeal on the merits of the Federal Court’s prohibition application was unsuccessful on the merits (2017 FCA 50). I would also dismiss its alternative submission.
[5] Indeed, each of the impugned portions of the Federal Court’s costs award involves a matter of fact or mixed fact and law from which no pure issue of law can be extricated. I do not see any error, much less a palpable and overriding one, having been made by the Federal Court in respect of any of the said portions of its costs award.
[6] I would therefore dismiss this appeal with costs that I would fix in the all-inclusive amount of $500.00.
“Johanne Gauthier”
J.A.
“I agree
Yves de Montigny J.A.”
“I agree
Mary J.L. Gleason J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Docket:
A-65-16
APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE LOCKE DATED JANUARY 29, 2016, DOCKET NO. T-1791-13 (2016 FC 107)
STYLE OF CAUSE:
TEVA CANADA LIMITED v. LEO PHARMA INC. AND LEO PHARMA A/S and THE MINISTER OF HEALTH
PLACE OF HEARING:
Montréal, Quebec
DATE OF HEARING:
February 2, 2017
REASONS FOR JUDGMENT BY:
GAUTHIER J.A.
CONCURRED IN BY:
DE MONTIGNY J.A.
GLEASON J.A.
DATED:
March 14, 2017
APPEARANCES:
Jonathan Stainsby
For The Appellant
Julie Desrosiers
Marie Lafleur
Christian Leblanc
Alain Leclerc
Kang Lee
For The Respondent
LEO PHARMA INC. AND LEO PHARMA A/S
Maguy Hachem
For The Respondent
THE MINISTER OF HEALTH
SOLICITORS OF RECORD:
Aitken Klee LLP
Toronto, ON
For The Appellant
Fasken Martineau DuMoulin LLP
Montreal, Quebec
For The Respondent
LEO PHARMA INC. AND LEO PHARMA A/S
William F. Pentney
Deputy Attorney General of Canada
For The Respondent
THE MINISTER OF HEALTH