Date: 19980423
Docket: T-633-95
BETWEEN:
MERCK FROSST CANADA INC.,
| -and- |
MERCK & CO., INC.,
| Applicants, |
AND:
THE MINISTER OF
NATIONAL HEALTH AND WELFARE,
-and-
KYORIN PHARMACEUTICAL CO., LTD.
-and-
APOTEX INC.
Respondents
REASONS FOR ORDER
ROTHSTEIN J.:
[1] On this application for costs on the basis of special circumstances, I have had regard to the various cases that have been pointed out by counsel. What these cases seem to indicate is that each decision is based on the facts of the case. Where from a factual analysis it is possible to deduce a principle, that would be helpful, but that is not the case here.
[2] In the present case, Merck submits that the ultimate conclusion was that there was a finding of literal infringement. However, the fact that there may be literal infringement does not per se constitute special circumstances. There was evidence adduced and argument made by Apotex in the case. That Apotex's arguments were not accepted by the Court does not satisfy the requirement for special circumstances.
[3] Although there was a suggestion of abuse of the process, the circumstances do not support such a finding.
[4] On the facts of this case there are no special circumstances justifying an award of costs. There will be no award of costs.
Marshall Rothstein
J U D G E
OTTAWA, ONTARIO
APRIL 23, 1998