Merck Frosst Canada Inc. v. Canada ( Minister of National Health and Welfare )
T-1305-93
Rothstein J.
10/6/97
8 pp.
Application by respondent Apotex for costs relative to proceedings under Patented Medicines (Notice of Compliance) Regulations (Regulations)-Apotex successful in having applicants' application to extend time and prohibition application dismissed-Federal Court R. 1618 (no costs payable in judicial review proceedings unless Court, upon finding special reasons, so orders) applicable to proceedings under Regulations-Although proceedings under Regulations best characterized as private litigation, nevertheless judicial review proceedings-Legislative or regulatory regime per se cannot constitute special reasons; one must look at particular circumstances of case-Substance to argument Regulations contemplate determination on merits of prohibition application and where no determination on merits made, Regulations have been invoked, but not for purposes for which intended-This constitutes special reasons for awarding costs under R. 1618 against party responsible for matter not being adjudicated on merits within statutory period (30 months)-Semble: if patentee or competitor has particularly unmeritorious position in case under Regulations, even if determination on merits made by Court, argument for costs based on special reasons might be accepted-Although applicants faced unusual circumstances, nonetheless, fact remains matter not adjudicated on merits within statutory period provided-Fact novel issue (question of Court's jurisdiction to grant prohibition and/or extension of time after statutory period raised for first time in case) raised does not cancel special reasons for awarding costs for purposes of R. 1618-Once Court has found special reasons exist, must still exercise discretion in accordance with R. 344 with respect to amount of costs-Here, only party-party costs appropriate-Therefore, special reasons exist and award of costs in favour of Apotex made-Matter adjourned to enable parties to attempt to settle amount of costs between themselves-Patented Medicines (Notice of Compliance) Regulations, SOR/93-133-Federal Court Rules, C.R.C., c. 663, RR. 344 (as am. by SOR/95-282, s. 1), 1618 (as enacted by SOR/92-43, s. 19).