FC Orders Costs Against Teva for Filing a NOA, Triggering PM(NOC) Proceedings

FC Orders Costs Against Teva for Filing a NOA, Triggering PM(NOC) Proceedings

Eli Lilly Canada Inc. v. Teva Canada Limited2013 FC 621              

Eli Lilly sought an Order for costs in connection with the Court’s earlier dismissal of its PM(NOC) prohibition application on the ground of mootness. Previously the Court had found that the application was moot because Teva had withdrawn its Notice of Allegation (NOA). 

Lilly is entitled to an award of costs because Teva effectively triggered the prohibition application by filing a NOA.

Notwithstanding the early withdrawal of Teva’s NOA, it was prudent for Lilly to have retained expert witnesses in advance of receiving Teva’s evidence. The time frames that apply to NOC proceedings are tight and some anticipatory work with experts is to be expected.

The Court also made other adjustments to the amounts awarded based on the circumstances of the case.