Federal Appeal

Civil Procedure

Not immutable principle of law that no costs awarded where success divided

Appeal from judgment awarding respondents costs of $45,000. Judgment disposed of application under Patented Medicines (Notice of Compliance) Regulations (Can.), for order prohibiting appellant from selling certain drug until expiry of two patents. Application judge awarded respondents 50% of costs claimed. Appeal dismissed. Decision on costs was discretionary and would not be disturbed on appeal unless decision was based on error in principle or was plainly wrong. Where success was divided, it was not immutable principle of law that no costs would be awarded. Application judge was clearly aware of practical result of proceeding and remedies sought.

Mylan Pharmaceuticals ULC v. Bristol-Myers Squibb Canada Co. (Oct. 1, 2013, F.C.A., K. Sharlow J.A., Mainville J.A., and Near J.A., File No. A-74-13) 234 A.C.W.S. (3d) 560.

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