Effem Foods Ltd. v. H.J. Heinz Co. of Canada Ltd.
T-1245-97
Rothstein J.
3/7/97
3 pp.
Application for costs on interlocutory injunction application-Latter application denied, but not frivolous or vexatious-Based on Thurston Hayes Developments Ltd. et al. v. Horn Abbot Ltd. et al. (1985), 5 C.P.R. (3d) 124 (F.C.A.), application denied-Court therein of view awarding costs in any event of the cause prejudging case and penalizing other party-Court also of view to impose such penalty not proper exercise of judicial discretion-However, compelling case made that law of costs in respect of interlocutory injunctions evolving and rationale for awarding costs thereon irrespective of outcome of trial-(1) Interlocutory injunction not issue at trial and decision made thereon not fettering judge at trial: Apotex Inc. v. Egis Pharmaceuticals (1990), 32 C.P.R. (3d) 559 (Ont. Ct. Gen. Div.)-(2) Fixing of costs and making them payable forthwith instrumentality aimed at expedition; serving as well twin objective and salutary purpose of focusing minds of litigants on cost of litigation: Applied System Technologies, Inc. v. Sysnet Computer Systems, Inc. (1992), 41 C.P.R. (3d) 129 (Ont. Ct. Gen. Div.)-While policies stated in above cases may well be modern thinking with regard to awarding of costs in interlocutory injunction applications, Federal Court of Appeal decision in Thurston Hayes binding, so costs will be awarded in the cause.