Eli Lilly Canada Inc. v. Hospira Healthcare Corporation, 2016 FC 1218

Hospira brought a motion seeking directions concerning the assessment of its costs in the underlying proceeding. The Court agreed with the parties that a lump sum award was preferable.

The Court refused to reduce the costs for Hospira's unproven Section 53 allegation. The Court agreed that this was an alternative allegation in the Notice of Allegation that was contingent on Eli Lilly's adoption of a position it did not assert; accordingly, there was no Section 53 issue presented to the Court for determination.

The Court noted that an award of costs is not intended to represent a full indemnity, but only a reasonable contribution to the costs of litigation. While complex proceedings may warrant an award at the high end of Column IV, the Court found that it did not justify a further increase. Also the fact that a party may employ three or more counsel at various stages was of no particular relevance since the usual practice is to allow for two counsel and not three.

Hospira had requested a lump sum award of $576,001.12 plus interest of 5% per annum. After disallowing a Section 53 reduction, the Court allowed Hospira costs and disbursements in the amount of $495,000.00 plus interest at 3.5% per annum.