Apotex v. Abbott et al., 2013 ONSC 2958  Drug: LANSOPRAZOLE

Abbott and Takeda had previously been successful in a motion for partial summary judgment dismissing Apotex’ claims for disgorgment of profits based on allegations of unjust enrichment (Decision here; summarized here). The parties were unable to agree on the costs of the motion. This decision considers the circumstance and sets the costs award on a substantial indemnity basis.

The Court held that this was a complex summary judgment motion. In this case,  Abbott and Takeda were held to have separate interests in this proceeding, and did not produce duplicative work. Thus, each should be entitled to their costs.

The Court held that Apotex had made claims of wrongful allegations by alleging that Abbott and Takeda engaged in abusive conduct by merely invoking the regime that Parliament created. The Court could not condone a strategy where these types of allegations could be pled, and a party would be shielded from costs consequences by not vigorously pursuing them. While the allegations at issue were held not to be akin to fraud or actual deceit, they were held to cross the line into counter-productive conduct that warrants a costs sanction.

The Court also held that although a finding of forum shopping was not explicitly made, the similarities between this proceeding and those in Federal Court are “plain and striking”. “Out of the same facts, Apotex tried its argument in two different forums and, unsurprisingly, received the same answer twice.” (para 27).

Thus, the Court awarded substantial indemnity costs, although, it did reduce the amount claimed by Abbott and Takeda to $65,000 and $39,000 respectively.