PRACTICE |
Costs |
AstraZeneca AB v. Novopharm Ltd.
A-668-01
2004 FCA 258, Stinson A.O.
12/7/04
29 pp.
Appellant unsuccessful before Registrar of Trade-marks and before Federal Court concerning application for registration of trade-mark--Federal Court of Appeal dismissed appeal with costs--Respondent claiming double costs under Federal Court Rules, 1998 (Rules), r. 420 based on settlement offer dated June 11, 2002 which remained open until two minutes after commencement of hearing--Appellant arguing double costs not allowable because revocation two minutes into hearing inconsistent with phrase in r. 420(2) "a written offer to settle that is not revoked"--Pointing to serious potential for unfairness in r. 420(2)(a) identified in concurring opinion in Francosteel Canada Inc. v. African Cape (The), [2003] 4 F.C. 284 (C.A.)--That opinion comparing Ontario Rule which requires plaintiff to make decision before beginning of hearing or bear risk of all subsequent costs incurred by defendant if fails to accept offer when should have--Majority opinion in African Cape confined itself to r. 400(1) considerations-- Concurring opinion obiter because its consideration of operation of r. 420 could not intersect with consideration of r. 400(3)(e) concerning offer to settle as it affects Court's discretion under r. 400(1) to decide entitlement to costs-- Potential impact of Ontario Rule examined--Offer meets criteria of Ontario Rules of Civil Procedure, r. 49.10(2)(a), (b) and (c)--Difficult to appreciate how Ontario Rules could assist or work better, to induce settlement, than r. 420 in circumstances here--Criterion in Ontario Rules different from r. 420(2)(a) because plaintiff obtains judgment as favourable as terms of offer to settle--That is irrelevant because concurring opinion in African Cape, addressed r. 420(2)(a), but here appellant did not obtain judgment--Rather, appellant failed to obtain judgment within meaning of r. 420(2)(b)-- Canadian Olympic Assn. v. Olymel, Société en Commandite (2000), 8 C.P.R. (4th) 429 (F.C.T.D.) refusing doubling of costs in similar circumstances, distinguishable--Time limit in settlement offer not equating to revocation within meaning of r. 420--Monsanto Canada Inc. v. Schmeiser (2002), 19 C.P.R. (4th) 524 (F.C.T.D.) confirmed entitlement under r. 420 to double costs as function of unrevoked settlement offer --Court therein agreed purpose of r. 420(1) to encourage settlement offers and avoid costs of trial--This conclusion implicitly recognizing reality of litigation that litigants, often for strategic reasons, do not want offers on table as hearing unfolds and that, if said strategy not available, might be less inclined to bother making offers at all--Expiry provision in settlement offer not effectively revocation of offer--Ontario Rules, r. 49.10(2)(b) distinguishing between concepts of withdrawal and expiry--R. 420 should not be generally taken as precluding application of its consequences to litigant so rigidly committed to position that there is or was never any possibility of compromise--Element of compromise not absolute requirement in all circumstances of settlement offers --Respondent granted access to doubling of costs--Federal Court Rules, 1998, SOR/98-106, rr. 400, 420--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 49.10(2) (as am. by O. Reg. 284/-01, s. 11).