PRACTICE |
Costs |
Accpac International, Inc. v. Softrak Systems, Inc.
T-1381-99
Lafrenière P.
31/7/00
8 pp.
Motion by defendant for order plaintiff pay its costs forthwith in amount of $75,000 in respect of plaintiff's motion for interlocutory injunction abandoned on 11/2/00--Alternatively, defendant seeking order directing assessment of its cost on solicitor-and-client basis--Action seeking permanent injunction for infringement of copyright for "Adagio" suite of accounting software program--Defendant submitting plaintiff's actions in moving for interim and interlocutory relief have made it incur substantial and unnecessary expense--Federal Court Rules, 1998, r. 402 providing party against whom motion has been abandoned entitled to costs forthwith--R. 400 setting out factors Court may consider when dealing with question of costs (result of proceeding, importance and complexity, any written offer to settle, amount of work, whether any step improper, vexatious or unnecessary)--Defendant successful in defending motion--Interlocutory injunction, if granted, would have put defendant out of business--Notice of motion provided by plaintiff relatively short in light of difficult and complex issues of fact and law involved--This resulted in defendant incurring substantial legal costs to marshal its evidence in response in hurried fashion--Choice of venue of Toronto rather than Vancouver also increased defendant's costs substantially--Motion allowed in part--Plaintiff has failed to displace presumption contained in r. 402--Issues on abandoned motion not same as at trial--Injunction extraordinary remedy that should be sought only most cautiously and sparingly--Had plaintiff obtained injunction, it would have had immediate remedy--Defendant should not be required to wait to recover its reasonable costs of plaintiff's failed motion--Defendant has been put to considerable expense to both prepare and defend interlocutory injunction motion--Plaintiff should not be burdened with paying all expenses, but only those reasonably incurred--Costs should be assessed in fixed amount based roughly on defendant's bill of costs--Costs of counsel MacFarlane will be allowed on solicitor-and-client basis throughout--Half of costs of Ms. Pallotta throughout allowed, except for initial review, allowed in full--Costs of Mr. Szibbo allowed in full for initial review--Half costs associated with articling student and law student allowed--Disbursements allowed subject to excluding certain deductions defendant conceded not claimable--Plaintiff shall pay defendants its costs fixed at $89,550 ($65,000 for fees, $20,000 for disbursements and $4,550 in goods and services tax assessable on fees) forthwith--Plaintiff shall also pay costs of this motion on party-and-party scale fixed in amount of $3,700 ($3,000 for fees and $700 for disbursements) forthwith--Federal Court Rules, 1998, SOR/98-106, rr. 400, 402.