Apotex Inc. v. Bayer Aktiengesellschaft, [1999] 3 S.C.R. 857
Apotex Inc. Applicant
v.
Bayer Aktiengesellschaft and Miles Canada Inc. Respondents
Indexed as: Apotex Inc. v. Bayer Aktiengesellschaft
File No.: 26979.
1999: December 7.
Present: Gonthier J.
motion to review taxation of costs
Practice – Supreme Court of Canada – Taxation of costs – Review of Registrar’s decision – Expenses incurred to retain services of experts on application for leave to appeal not qualifying as “disbursements” under Part II of Schedule B of Rules of Court – Expenses not specifically authorized by Rules – Court’s authorization required under Rule 58 for expenses to be approved as disbursements in bill of costs – Motion to review taxation of costs dismissed – Rules of the Supreme Court of Canada, SOR/83-74, Rules 58, 62, Schedule B.
Cases Cited
Followed: Apotex Inc. v. Wellcome Foundation Ltd. (1998), 84 C.P.R. (3d) 303; Bhatnager v. Canada (Minister of Employment and Immigration), [1991] 3 S.C.R. 317; referred to: Coopérative de commerce “Des Mille-Îles” v. Société des alcools du Québec, S.C.C., No. 25703, October 27, 1997; Jaremko v. Metropolitan Toronto Condominium Corp. No. 875, S.C.C., No. 26714, June 8, 1999.
Statutes and Regulations Cited
Federal Court Rules, 1998, SOR/98-106, Tariff A, s. 3(2), Tariff B, s. 1(3).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Tariff A, item 28.
Rules of the Supreme Court of Canada, SOR/83-74, Rules 58, 62, Schedule B [am. SOR/97-476, s. 12].
Tariff of judicial fees of advocates, R.R.Q. 1981, c. B-1, r. 13, s. 12.
MOTION to review taxation of costs by the Registrar. Motion dismissed.
Written submissions by Henry S. Brown, Q.C., for the respondents/applicants.
Written submissions by Richard Naiberg and Daniela F. Bassan, for the applicant in the leave application/respondent on the motion.
The following is the order delivered by
1 Gonthier J. – This is a motion pursuant to Rule 62 of the Rules of the Supreme Court of Canada, SOR/83-74 (“Rules”), for a review of a taxation of a bill of costs ordered by the Registrar on August 25, 1999. The central question in this motion is whether expenses incurred by a party to retain the services of experts are “disbursements” which are payable by the unsuccessful party on an application for leave to appeal. For the reasons I set out below, it is my opinion that such expenses are not specifically authorized by the Rules, and can only be authorized as extraordinary expenses pursuant to Rule 58.
2 In the application for leave to appeal, the applicant, Apotex Inc., sought to demonstrate that the appeal had sufficient national importance to warrant leave by introducing affidavits by three experts. The respondent, Bayer Aktiengesellschaft (“Bayer”) countered with their own affidavits, deposed by two other experts. The applicant was unsuccessful in its application for leave, which was dismissed by a panel of this Court with costs, on April 1, 1999, [1999] 1 S.C.R. v.
3 Bayer sought to include the costs of the expert evidence in their bill of costs. The cost of the “expert evidence” was listed at $6,844.40; the cost of travel expenses to meet with the experts was listed as $550 (the latter type of expense has been disallowed in other courts: Apotex Inc. v. Wellcome Foundation Ltd. (1998), 84 C.P.R. (3d) 303 (F.C.T.D.)). Both of these items were listed under “Disbursements”. Apotex objected to the bill of costs, claiming that they were impermissible expenditures, unauthorized by the Rules, and unreasonably high in any event.
4 The Registrar held that these are not the types of expenses which are covered by Part II of Schedule B of the Rules. Upon further objection by Bayer, the Registrar confirmed her decision on October 8, 1999. Pursuant to Rule 62 of the Rules, Bayer asks for a review of the Registrar’s decision.
5 The Registrar’s decision is entitled to a degree of deference. In Bhatnager v. Canada (Minister of Employment and Immigration), [1991] 3 S.C.R. 317, at p. 318, Sopinka J. explained that this Court “should not generally interfere with the decision of the Registrar simply on the basis of a difference of opinion as to the proper amount to be allowed. Rather, there must be an error in principle or the Registrar must be shown to be clearly wrong in the amount allowed”. The Registrar is entitled to this deference because of her expertise in the area, and the nature of the questions raised in this motion.
6 The Registrar reviewed Rule 58 of the Rules, which states that “Unless otherwise ordered by the Court, costs in appeals or applications for leave or motions shall be taxed party and party pursuant to the tariff of fees contained in Schedule B.” Schedule B contains a list of fees in Part I, including the counsel’s fees, and a list of disbursements payable in Part II. The relevant sections are as follows:
The following will be allowed by the Registrar for disbursements:
1. Fees paid to the Registrar under Schedule A.
2. A reasonable amount for reproducing documents required to be filed with the Court, including application books, motion books, case on appeal, factums and books of authorities.
3. Reasonable amounts for other disbursements necessarily incurred in proceedings before the Court, including travel expenses.
7 The Registrar held that expert evidence does not constitute a “reasonable amoun[t] for other disbursements necessarily incurred in proceedings before the Court”. She drew a distinction between those types of expenses which are related to “counsel’s preparation of arguments” and those expenses which related to “preparation of the application”. Whether this distinction is borne out by the governing regulations or not, in my view these expenses cannot be claimed in a bill of costs for a leave application before this Court.
8 In other courts, rules of court expressly provide that such expenditures may form part of a bill of costs, so long as they were reasonable: see, e.g., Federal Court Rules, 1998, SOR/98-106, Tariff A, s. 3(2); Tariff B, s. 1(3); Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Tariff A, item 28; Tariff of judicial fees of advocates, R.R.Q. 1981, c. B-1, r. 13, s. 12. The notable absence from the Rules of this Court simply reflects the fact that this Court infrequently receives new evidence of this kind, either in the conduct of appeals or on applications for leave. It also reflects the fact that this Court does not normally issue reasons on applications for leave to appeal, and the Registrar would therefore be ill-equipped to determine whether expert evidence was actually “reasonably necessary” for deciding the application.
9 As there is no specific provision contained in the Rules granting jurisdiction to the Registrar to award costs for expert evidence, it is necessary to look to the residual category. In my view, the words “other disbursements” must be read in their entire context. This provision in the Rules dictates that the disbursements be “necessarily incurred” in the proceeding. The preceding section refers to disbursements relating to photocopying charges. In my view, read in its context, the words “other disbursements” do not suggest that fees for expert evidence can be included in Part II of a bill of costs. Rather, the types of expenses permitted by this section are those expenses which are demonstrably necessary in order to present written and oral submissions to the Court.
10 This approach to allowable expenses has been consistently applied. The Registrar has, in the past, been vigilant to allow only those expenses absolutely necessary to conduct the proceeding in this Court. For example, when parties file excessive material in an application record which are not subsequently referred to, they cannot claim those excess photocopying costs: Coopérative de commerce “Des Mille-Îles” v. Société des alcools du Québec, S.C.C., No. 25703, October 27, 1997. See also Jaremko v. Metropolitan Toronto Condominium Corp. No. 875, S.C.C., No. 26714, June 8, 1999 (published in the Bulletin of Proceedings of the Supreme Court of Canada, 1999, at p. 995). Where the actual expenditure cannot be demonstrated to the Registrar that it is necessary for the presentation of the case, it cannot be claimed in a bill of costs.
11 In my view, because of the special nature of new evidence before this Court, expenses relating to this type of evidence cannot be approved by the Registrar unless expressly authorized. For this type of expenditure to be approved as a disbursement in a bill of costs, they must be authorized by the Court under Rule 58 pursuant to a request for costs. Such expenditures may be appropriate in certain circumstances, such as where the issues are particularly complex and the information provided by the experts requires particularized skill and knowledge and is important for the Court’s decision.
12 For these reasons, it is my view that the Registrar was neither clearly wrong, nor did she make any error in principle, when she ruled that in this case the evidence relating to experts could not be included in the disbursements section of a bill of costs under the Tariff of Fees and Disbursements, Schedule B.
13 Accordingly, the motion for a review of a taxation of a bill of costs ordered by the Registrar on August 25, 1999 and confirmed by her on October 8, 1999 is dismissed with costs.
Motion dismissed with costs.
Solicitors for the respondents/applicants: Gowling, Strathy & Henderson, Ottawa.
Solicitors for the applicant on the leave application/respondent on the motion: Goodman Phillips & Vineberg, Toronto.