PRACTICE |
Costs |
Contour Optik Inc. v. Hakim Optical Laboratory Ltd.
T-1880-00
Lemieux J.
13/12/00
6 pp.
Appeal from Associate Senior Prothonotary's decision, in patent infringement action involving magnetic clip-on sunglasses, granting defendant additional security for costs until end of discoveries from $5,000 to $27,000, and $1,000 cost award payable in the cause--Plaintiff arguing A.S.P. erred in fact and law in making order on grounds costs clearly excessive, unreasonable, speculative and contrary to case law in patent infringement cases--Appeal dismissed--Application of Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.): such order ought to be disturbed on appeal only where clearly wrong, i.e. based upon wrong principle or upon misapprehension of facts, or where improper exercise of discretion on question vital to final issue of case--As question not vital to final issue of case, issue whether A.S.P.'s order clearly wrong as based upon error of law in applying wrong principle or upon misapprehension of facts--As plaintiff produced no affidavit as to facts, no evidence to establish misapprehension of facts--No principle misapplied in endorsing high end units advanced by defendant--Case law submitted by defendant of limited assistance as mainly decided before changes to Federal Court Rules in 1998--Furthermore, defendant properly pointing out distinction between patent infringement and patent impeachment cases--$1,000 cost award in permissible range--Costs of present appeal payable to defendant in any event of cause fixed at $1,500--Federal Court Rules, 1998, SOR/98-106.