PRACTICE |
Costs |
Maytag Corp. v. Whirlpool Corp.
A-676-97
2001 FCA 250, Sharlow J.A.
10/8/01
9 pp.
Respondents' 1996 action for infringement of patents for dual-action agitators for clothes washing machines against applicants resulting in consent judgment; affirmed on January 22, 1999 by Federal Court, Appeal Division and on December 15, 2000 by Supreme Court of Canada--Respondents awarded costs at each stage--Now seeking: (1) to extend time to bring motion pursuant to Federal Court Rules, 1998, r. 403(1) for directions to assessment officer in respect of costs in appeal; (2) direction under r. 403 for lump sum award of costs in lieu of party-and-party costs already granted, or directions resulting in costs in excess of Tariff B--Argument if costs awarded, motion for directions for fixed amount of costs cannot be entertained unless criteria for reconsideration of judgment as set out in r. 397 satisfied, rejected as giving no effect to r. 403(2), which specifically permits motion for directions with respect to costs even if costs awarded in judgment--R. 403(2) overriding more general requirements for reconsideration of judgment in r. 397--Applicants arguing motion for directions out of time because, pursuant to r. 403(1)(a) should have been made within 30 days of January 22, 1999 (date on which Appeal Division judgment rendered)--Respondents arguing motion timely because applicants' appeal not finally determined until Supreme Court of Canada rejected applicants' motion for rehearing in February 2001--R. 403(1)(a) providing motion for directions with respect to award of costs to be made within 30 days of judgment to which costs relate--In case of applicants' appeal, 30-day period permitted for motion for directions with respect to costs commenced on January 22, 1999--Respondents' motion for directions not filed until March 2001, more than two years later--Therefore motion for directions out of time--As to whether extension appropriate, purpose of 30-day time limit to ensure matter sufficiently fresh that Court in position to appreciate whether any circumstances justifying departure from normal tariff amounts; very special reasons required to warrant lengthy extension of time limit: Smerchanski v. Minister of National Revenue, [1979] 1 F.C. 801 (C.A.)--Respondents' argument liability for costs not finally known until February, 2001 rejected--Although drafters of r. 403 aware of possibility appeal might result in reversal of order for costs, did not deter them from imposing 30-day limit in r. 403(1)(a), and did not lead them to substitute rule that would permit motion for directions as to costs after determination of any, all appeals--Thus inferred more weight placed on value of timely, certain determination of matters of costs than on possibility of wasted effort due to appeals--Court must consider reasons for delay, duration, strength of arguments in support of motion for increased costs, prejudice--No valid reason why this application for directions as to costs in appeal could not have been made within 30 days of judgment on January 22, 1999--At that time respondents knew had succeeded both in Trial, Appeal Divisions--Knew entire background of claim, degree of complexity of case against applicants, result--Nothing happened after January 1999 to change any of these facts--Extension of over two years considered lengthy--Motion record establishing neither that applicants' conduct reprehensible nor that matter particularly complex, difficult, time consuming, or that "test case"--Arguments in support of increased costs relatively weak--Extension of time for filing application for directions as to costs not justified--Federal Court Rules, 1998, SOR/98-106, rr. 397, 403.