PRACTICE |
Costs |
Lifescan, Inc. v. Novopharm Ltd.
T-780-00
2001 FCT 809, Lemieux J.
19/7/01
11 pp.
Motion for reconsideration in order that (1) defendant shall have costs of motion heard by Dawson J. on May 15, 2000; (2) defendant shall have costs of motion for interlocutory injunction heard September 6 and 11, 2000 in any event of cause and payable forthwith; (3) direction be issued that assessment of costs for two counsel be performed under upper end of column V of Tariff B; and (4) defendant shall have costs of this motion--Application for interlocutory motion dismissed November 10, 2000--Defendant requested motion be dismissed with costs--Memorandum of fact and law requested opportunity to make submissions regarding costs--Costs payable on attendance before Dawson J. not specifically dealt with--Cost issue should be reconsidered on basis of Federal Court Rules, 1998, r. 397(1)(b), permitting reconsideration where matter that should have been dealt with overlooked or accidentally omitted--Court overlooked when, in what circumstance should costs awarded be payable for hearing before Dawson and Lemieux JJ., in light of request for opportunity to make submissions regarding costs--(1) Pursuant to r. 401(1), Court has discretion in determining appropriate award of costs on motion to award costs to either party regardless of outcome of main matter--Thus costs on motion for interlocutory injunction may be payable in any event of cause--Governing policy when considering r. 401 set out in AIC Ltd. v. Infinity Investment Counsel Ltd. (1998), 140 F.T.R. 240 (F.C.T.D.): fixing costs on motion aimed at expedition, focusing minds of litigants on costs of litigation--Plaintiffs relying on Thurston Hayes Developments Ltd. v. Horne Abbot Ltd. (1995), 5 C.P.R. (3d) 124 (F.C.A.) to suggest costs should be in cause--Issue settled by A. Lassonde Inc. v. Island Oasis Canada Inc., [2000] 2 F.C. 568 (C.A.), holding Thurston Hayes overtaken by r. 401--Defendant should have costs of motions before Dawson, Lemieux JJ. in any event of cause--(2) R. 401(2) providing Court shall order costs payable forthwith where satisfied motion should not have been brought, opposed --Motion for interlocutory injunction reasonably brought as plaintiffs established serious issue, and irreparable harm issue warranted careful analysis--Costs not payable forthwith--(3) R. 407 providing party-and-party costs shall be assessed in accordance with column III of table to Tariff B unless Court ordering otherwise--Direction issued to taxation officer that costs of motion heard on merits for interlocutory injunction should be assessed at upper range of Column IV principally because of volume of work involved, nature of work, fact party-and-party costs should bear reasonable relationship to actual cost of litigation--Defendant not filing unnecessary affidavits, but obliged to respond to numerous issues raised by plaintiffs' affiant--Motion before Dawson J. was opposed adjournment request--Defendant entitled to costs of that motion--Delay in bringing injunction application not considered for purposes of cost award because irrelevant to cost issue, although relevant to dismissal of injunction--(4) Each party to bear own costs of this motion as success divided--Federal Court Rules, 1998, SOR/98-106, rr. 397(1)(b), 401, 407.