Eli Lilly and Company and Eli Lilly Canada Inc. v Apotex Inc. and Between: Apotex Inc. v Eli Lilly and Company and Eli Lilly Canada Inc. and Shionogi & Co. Ltd.

Drug: cefaclor

The Court considered the calculation of costs and disbursements in an action relating to patent infringement and a counterclaim based on an alleged breach of the Competition Act. The Court was primarily considering the effect of various settlement offers on the amounts to be paid by Apotex to Eli Lilly and Shionogi.

The Court first considered the appropriate quantum of costs and disbursements in respect of the Competition Act counterclaim. The Court noted that the Federal Courts Rules require that an offer only needs to remain open until the start of the trial or hearing at issue to impact the quantum of costs, and not until judgment or until a matter is taken under advisement. The Court then determined the appropriate amount to be paid by Apotex to Eli Lilly and Shionogi.

With respect to the costs and disbursements in the main action, namely the patent infringement action, the Court again considered the effect of various settlement offers. The Court only assessed the amount to be paid by Apotex to Eli Lilly until the date of the settlement offer, indicating that it is necessary for the Court to first assess the quantum of damages to be paid to Eli Lilly before the effect of the settlement to offer can be properly determined.