PRACTICE |
Costs |
CCH Canada Ltd. v. Law Society of Upper Canada
A-806-99, A-807-99, A-808-99
2004 FCA 278, Rothstein J.A.
25/8/04
13 pp.
Motion for increased costs--Publishers had sued Law Society of Upper Canada (LSUC) for copyright infringement, authorizing infringement by providing copies of reported cases to members, permitting Osgoode Hall Great Library users to photocopy legal works--F.C.T.D. Judge made no costs award--F.C.A. found LSUC guilty of infringement yet denied publishers' request for permanent injunction--Considering importance, complexity of issues, divided success, F.C.A. ordered each party to bear own costs--But, upon further appeal, S.C.C. declared LSUC does not infringe copyright by making single copy, does not authorize infringement in permitting making of photocopies at Great Library--LSUC awarded "costs throughout"--LSUC now seeks lump sum award of costs of $251,000 (fees) plus $37,000 (disbursements), GST included--LSUC paid more than $414,000--LSUC argued costs provided by Tariff unreasonable in circumstances of this appeal--Publishers arguing: (1) F.C.A. lacks discretion to award increased costs after S.C.C. judgment; (2) S.C.C. order of "costs throughout" allowed F.C.A. no discretion to order costs other than under Federal Court Rules, Tariff B, Column III: Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc., [2003] 2 F.C. 451 (C.A.); (3) increased costs could not be awarded based on LSUC's representation before S.C.C. no special circumstances as to costs--As to first argument, S.C.C.'s award of "costs throughout" remitting to lower courts determination of costs in each Court in accordance with rules of such courts--As to second argument, when S.C.C. remits matter of costs, only fetter on Court's discretion in respect of costs that lower Court may not exercise discretion in manner inconsistent with S.C.C.'s costs award: Eli Lilly and Co. v. Novopharm Ltd., [1999] 2 F.C. 175 (C.A.)--S.C.C. award of "costs throughout" neutral direction: F.C.A. may award increased costs, in accordance with Federal Court Rules, r. 400(1), (4) --As to third argument, LSUC submits its representations before S.C.C. were in context of solicitor-and-client costs, not increased party-and-party costs--Record not supporting argument S.C.C. considering quantum of party-and-party costs in F.C.A.--F.C.A. does possess jurisdiction to entertain increased costs application--Factors to be considered in awarding increased costs--Case involved issues having high degree of complexity, many never before considered in Canada--Argument in F.C.A. took three days while most appeals require only a half day--F.C.A. reasons for judgment 140 pages in length--Five interventions before S.C.C.-- LSUC entirely successful in defending against publishers' claims--Increased costs award justified--But publishers arguing LSUC at outset sought only costs at maximum end of Column IV, Tariff B, amounting to just $17,000, GST included--Original submissions of LSUC could not be completely overlooked so, while increased costs awarded, lump sum amount taking into account LSUC's earlier representations--LSUC substantially entitled to disbursements claimed, but considering paucity of evidence, some reduction should be made--LSUC claimed post-judgment interest from date of this Court's judgment (July 8, 2002); publishers suggested interest should run only from date F.C.A. makes costs order--Ontario's Courts of Justice Act, s. 129(1) providing money owing under order, including costs, bears interest from date of order; under s. 127(1), "date of the order" means date order made, even if not then entered, enforceable or varied on appeal--Publishers relied on case decided under Judicature Act, s. 40, predecessor of s. 129(1), Canadian Aero Service Ltd. v. O'Malley (1973), 2 O.R. (2d) 92 (H.C.J.), wherein Grant J. ruled interest ran from date of taxation of costs--Houser v. Township of West Lincoln (1984), 46 O.R. (2d) 703 (H.C.J. ) holding when C.A. varied trial judgment, interest ran from date of trial judgment--More recently, in Roberts v. Aasen (2003), 36 C.P.C. (5th) 185 (Ont. Sup. Ct.), McIsaac J., applying House of Lords decision in Hunt v. R.M. Douglas (Roofing) Ltd., [1988] 3 All E.R. 823, ruled that under s. 129(1), interest on costs is payable from date of judgment, not assessment--Houser interpretation preferred to that in Canadian Aero Service--Interest herein should run from July 8, 2002--Rationale: where, as here, costs order made only after appeal to S.C.C., successful party out of pocket for costs for long time--Interest recognizes time value of money-- Normally, no reason successful party's costs award should be eroded by series of appeals, taxation before securing result entitled to in first place--LSUC awarded $80,000 for party-and-party costs plus interest at 4% from July 8, 2002 to payment date--Success on this motion being divided, no costs thereof awarded--Federal Court Rules, 1998, SOR/98-106, r. 400(1), (4), Tariff B, Columns III, IV, V--Courts of Justice Act, R.S.O. 1990, c. C-43, s. 127(1) "date of the order", 129(1)--Judicature Act, R.S.O. 1970, c. 228, s. 40.