Date: 20021203
Docket: A-483-01
(T-913-95)
Neutral citation: 2002 FCA 482
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
CANWELL ENVIRO-INDUSTRIES LTD., CLIVE TITLEY, and
THE CITY OF MEDICINE HAT
Appellants
(Defendants)
and
BAKER PETROLITE CORPORATION,
PETROLITE HOLDINGS INC., BAKER HUGHES CANADA COMPANY
Respondents
(Plaintiffs)
REASONS FOR ORDER
STRAYER J.A.
[1] The appellants have applied for an order giving directions to an assessment officer for the taxation of costs. They succeeded on the appeal in which this Court set aside the decision of the trial judge and awarded costs to the appellants here and in the Trial Division.
[2] The parties sought guidance as to which Court or Courts should give directions for taxation of those costs. I directed on July 4, 2002 that the motion for directions would be dealt with in its entirety in this Court. I also asked the parties to provide lump sum figures for fees and disbursements in both the Trial Division and the Court of Appeal. Those submissions are now complete.
[3] I have determined that the Court should order lump sum awards rather than undertaking, or directing the undertaking of, a detailed taxation of costs in a matter which has already consumed a great deal of time of the parties and the Court.
[4] In fixing appropriate lump sums I have reviewed the submissions of the parties and will note my conclusions on the main issues they raise.
(a) While I believe the case is of above average complexity I do not think it warrants costs at the maximum of Column V as the appellants suggest. In my appreciation of patent cases I do not perceive this to be among the most complex. The appellants seek $127,710 in fees (subject to possible doubling as discussed below). I will set the fees at $100,000.
(b) As I understand Rule 420(2)(b), where a defendant makes an offer to a plaintiff which is rejected and the plaintiff then fails to obtain judgment (which is the case here), the defendant is automatically entitled to a doubling of the taxable fees thereafter "unless otherwise ordered by the Court". In this situation there is no need for the defendant to show that the offer was more generous to the plaintiff than the outcome. I am inclined to order otherwise than a doubling, however. The offer of November 26, 1999 was not, in my view, a real offer of a compromise. Apart from a few technical differences, for all practical purposes it was a demand for complete surrender with regard to the enforcement of the plaintiffs' alleged patent rights vis à vis these defendants (appellants). As I understand it the Court still has a discretion to exercise in the application or non-application of rule 420 and I so exercise it in favour of increasing the fees after November 26, 1999 by 50%. As I understand it the appellants claim an additional $85,470 for doubling of fees during the relevant period. This figure is no doubt based on Column V maxima. I will reduce this to $68,000 and allow a 50% increase instead of doubling, thus increasing the fees by reason of the settlement offer by $34,000.
(c) With respect to the extra costs incurred by failure to split the liability and quantum of profits issues, having reviewed the material it appears to me that the respondents were primarily responsible for these issues not ultimately being divided.
(d) In my view, the counterclaim costs are no longer owing by the appellants because the decision of this Court was to set aside the trial judge's judgment in its entirety, the finding in favour of the appellants on the validity issues having removed the basis for the trial judge's dismissal of the counterclaim.
(e) The appellants have claimed some $2,923.87 for Mr. Titley and another representative of Canwell to travel to Toronto for the appeal. This is not permissible as part of party and party costs and will be disallowed.
(f) I note that in their supplemental motion record the appellants have, in response to issues raised by the respondents, revised downward or eliminated certain disbursements and I am referring to the revised figures in fixing lump sums.
(g) I have considered other objections raised by the respondents and the reply of the appellants thereto in respect of certain disbursements and have concluded that the disbursements are permissible.
[5] I will therefore order costs of the trial and appeal as follows.
Fees (trial and appeal) $134,000.00 plus GST
Disbursements (trial and appeal) $320,000.00 plus GST
[6] I will also fix costs of this motion in favour of the appellants at $3,000.00.
(s) "B.L. Strayer"
J.A.
I agree
"Marshall Rothstein"
I agree
"John M. Evans"
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Canwell Enviro-Industries Ltd., Clive Titley and the City of Medicine Hat v. Baker Petrolite Corporation, Petrolite Holdings Inc., and Baker Hughes Canada Company
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE STRAYER
CONCURRED IN BY: The Honourable Mr. Justice Rothstein
The Honourable Mr. Justice Evans
WRITTEN REPRESENTATIONS BY:
David A. Aitken/Jennifer A. Ross-Carrière FOR THE APPELLANTS
Anthony G. Creber/Patrick S. Smith FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Osler, Hoskin & Harcourt LLP
Ottawa, Ontario FOR THE APPELLANTS
Gowling Lafleur Henderson LLP
Ottawa, Ontario FOR THE RESPONDENTS