Date: 20090710
Docket: T-1545-05
Citation: 2009 FC 318
Ottawa, Ontario, July 10, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MONSANTO CANADA INC. and
MONSANTO COMPANY
Plaintiffs
and
LAWRENCE JANSSENS, RONALD JANSSENS
and ALAN KERKHOF
Defendants
AMENDED REASONS FOR JUDGMENT
[1]
The
defendants are farmers. In 2004 they infringed Canadian Letters Patent No.
1,313,830 (“the ‘830 Patent”) by planting ROUNDUP READY® soybeans,
and by harvesting and selling most of the resulting crop. They saved and
cleaned 337 bushels of the ROUNDUP READY® soybeans from the 2004 crop
yield and planted it in 2005. Therefore, in 2005 they again infringed the ‘830
Patent by planting ROUNDUP READY® soybeans, and by harvesting and
selling all of the resulting crop. This Judgment deals with the accounting of
profits claimed by the plaintiffs.
[2]
This
action was heard immediately following Monsanto Canada Inc. et al. v.
Rivett 2009 FC 317, Court File T-1515-05, as both actions involve the same
plaintiffs, both are actions for patent infringement arising from growing
ROUNDUP READY® soybeans, and the parties in both actions were
represented by the same counsel. Portions of the Reasons for Judgment in Rivett
that deal with issues of fact and law that are common to this action are
adopted and are referenced in these Reasons.
Background
[3]
Most
of the relevant underlying facts are agreed upon by the parties and the
following is largely reproduced from admitted allegations in the Statement of
Claim and from an Agreed Statement of Facts filed at the commencement of trial.
[4]
Monsanto
Company is the owner of the ‘830 Patent issued February 23, 1993, for an
invention entitled “Glyphosate-Resistant Plants”.
Pursuant to the provisions of the Patent Act, R.S.C. 1985, c. P-4, and
by virtue of its patent, Monsanto Company is granted the exclusive right,
privilege and liberty of making, constructing, using and selling to others to
be used the invention described and claimed in the ‘830 Patent. Monsanto
Canada Inc. is related to Monsanto Company, and is a licensee under the ‘830
Patent. It sells Monsanto Company products in Canada. In these Reasons reference to both plaintiffs is made by the
terms “Monsanto” or “the plaintiffs”.
[5]
The
invention described and claimed in the ‘830 Patent relates to a plant gene
which, when expressed in a plant cell, confers a substantial degree of
glyphosate resistance upon the plant cell and plants containing such cells. As
a result, such cells are resistant to herbicides such as Monsanto’s ROUNDUP®
which contains glyphosate as the active ingredient. The invention
further relates to a method for producing dicotyledonous plants that are
resistant to glyphosate-containing herbicides. In Canada,
glyphosate-resistant seeds and plants containing genes or cells in accordance
with the claims of the ‘830 Patent are sold under the trademark ROUNDUP READY®.
[6]
Among
the benefits of ROUNDUP READY® seed is that a farmer can use
glyphosate herbicide on the plants once they have sprouted; this kills the
weeds but not the crop. This results in a saving in herbicide use, frequency
of application and an increased crop yield. As a consequence, ROUNDUP READY®
seed has been widely accepted by farmers in Canada.
[7]
ROUNDUP
READY® seed is only sold pursuant to a license that is personal to
the grower. The purchased seed can only be used by the grower for planting one
crop which is only to be sold for consumption; the grower is not entitled to
save seed for the purpose of replanting a second generation crop. These
conditions are imposed as every cell of each plant produced from ROUNDUP READY®
seed, as well as each resulting kernel or bean, contains the gene described in
the ‘830 Patent.
[8]
The three defendants are related; they are two
brothers and a step-brother. They farm together near Wallaceburg,
Ontario. They are not in
partnership; each operates his own farming business but they share resources
such as equipment. In 2004, without permission or a license, the defendants
collectively planted, cultivated and harvested 50 acres of ROUNDUP READY®
soybeans and harvested the resulting crop. The 2004 crop was planted before
May 1, 2004; however, it was only as of May 1, 2004, that the defendants knew
that the plaintiffs had a patent on the ROUNDUP READY® technology
and that a license was required to use the technology. They took no steps in
2004 to obtain a license or permission from the plaintiffs for the seed they
had planted.
[9]
The
defendants each admit that in 2004 they used, reproduced and created genes,
cells and soybean seeds and plants containing genes and glyphosate resistant
cells as claimed in each of claims 1, 2, 5, 6, 7, 22, 23, 26, 27, 28 and 47 of
the ‘830 Patent.
[10]
They
admit that in 2004 they sprayed the ROUNDUP READY® soybean sprouts
with a glyphosate herbicide to take advantage of the glyphosate tolerance
imparted by ROUNDUP READY® soybeans. They sold most of the yield
from the 2004 crop of infringing ROUNDUP READY® soybeans.
[11]
The
defendants retained and cleaned 337 bushels of ROUNDUP READY®
soybeans from their 2004 crop yield to plant in 2005.
[12]
The
following facts relevant to the 2004 crop were admitted by the defendants.
a. They sold
1463 bushels of the crop of infringing ROUNDUP READY® soybeans at
$7.00 per bushel providing them with gross revenues of $10,241.00.
b. They did not
pay another person to clean ROUNDUP READY® soybean seed.
c. They did not
pay rent for the land on which the ROUNDUP READY® soybean seed was
planted.
d. They did not
hire employees for the sole purpose of cultivating ROUNDUP READY®
soybeans.
e. They did not
pay a third party to plant ROUNDUP READY® soybeans.
f.
They
did not pay a third party to apply fertilizers or herbicides to the ROUNDUP
READY® soybeans.
g. They did not
pay a third party to harvest the ROUNDUP READY® soybeans.
h. They did not
pay a third party to transport ROUNDUP READY® soybeans.
i.
They
did not purchase equipment for the sole purpose of cultivating the ROUNDUP
READY® soybeans.
[13]
In
2005, the defendants planted all of the 337 bushels of ROUNDUP READY®
soybeans saved from the 2004 crop yield. Alan Kerkhof and Lawrence Janssens
each planted, cultivated and harvested 100 acres of ROUNDUP READY®
soybeans, while Ronald Janssens planted, cultivated and harvested 50 acres of
ROUNDUP READY® soybeans. They each admit that in so doing they
infringed claims 1, 2, 5, 6, 7, 22, 23, 26, 27, 28 and 47 of the ‘830 Patent.
[14]
They
each admit that in 2005 they made a deliberate decision to plant the ROUNDUP
READY® soybean seed without a license and they admit that they each
sprayed the sprouts with a glyphosate herbicide to take advantage of the
glyphosate tolerance imparted by ROUNDUP READY® soybeans.
[15]
In
2005, the defendants collectively planted, cultivated and harvested 250 acres
of ROUNDUP READY® soybeans and an additional 325 acres of
conventional soybeans. They sold all of the 2005 soybean crop and did not
segregate the ROUNDUP READY® soybeans when sold.
[16]
Each
defendant admits that the gross revenue he received from the sale of ROUNDUP
READY® soybeans in 2005 was as follows:
Lawrence Janssens -
$32,384.68
Ronald
Janssens - $16,192.34
Alan Kerkhof -
$32,384.68
[17]
The
following facts relevant to the 2005 crop were admitted by the defendants:
a. They did not
hire employees for the sole purpose of cultivating ROUNDUP READY®
soybeans.
b. They did not
pay a third party to plant ROUNDUP READY® soybeans.
c. They did not
pay a third party to apply fertilizers or herbicides to their ROUNDUP READY®
soybeans.
d. They did not
pay a third party to harvest the ROUNDUP READY® soybeans.
e. They did not
pay a third party to transport ROUNDUP READY® soybeans.
f.
They
did not purchase equipment for the sole purpose of cultivating the ROUNDUP
READY® soybeans.
[18]
Ronald
Janssens admits that the 50 acres of ROUNDUP READY® soybeans he
planted in 2005 were planted on land that he owns and that no rent was paid by
him for this land.
[19]
Apart
from the ROUNDUP READY® and conventional soybeans, in 2005 Alan
Kerkhof and Ronald Janssens also planted, cultivated and harvested corn and
winter wheat.
[20]
The
defendants admitted their infringement in 2005 and the
validity of the ‘830 Patent. Justice Simon Noël issued a consent judgment on
January 11, 2007, which granted certain declaratory relief, permanently
enjoined the defendants from further infringing activities and required the
defendants to deliver up any infringing seed and plants in their possession to
Monsanto Canada Inc.
[21]
That judgment left a number of issues to be
determined at the trial of this action. Some of these outstanding issues were
dropped or not pursued; the issue of infringement in 2004 was subsequently admitted
by the defendants. The plaintiffs were required under the terms of the
Judgment to elect as between damages and an accounting of profits. The
plaintiffs elected an accounting of profits. Accordingly, the only issues
remaining to be determined by the Court, pursuant to the consent Judgment and
the parties’ subsequent agreements, are the following:
a. An accounting of the defendants’ profits derived from the
infringement;
b. Prejudgment and post-judgment interest; and
c. The costs of the proceedings.
[22]
In addition to these agreed facts, its was
agreed that the evidence of Michael McGuire, a vice-president of Monsanto
Canada and the Director of its eastern Canadian seed and trade business given
ion the Rivett action, was to be admitted in this action. Mr. McGuire
testified as to the benefits of ROUNDUP READY® seed and the
additional profit that a farmer using this Monsanto product should expect to
obtain. He also spoke to the enforcement mechanisms that have been put in
place to track and deal with infringers of the ‘830 Patent. The defendants did
not dispute any of the evidence offered by Mr. McGuire. Each defendant’s
testimony was directed to his farming operation and the costs of his farming
operation.
[23]
As
in Rivett, the defendants proposed to call Gary Fisher as an expert
witness to speak to the costs of farming, and the costs of the defendants
operations. For the Reasons given in Rivett, the Court upheld the
objection of the plaintiffs to his evidence.
Issues
[24]
As
the trial proceeded, it became evidence that the following were the relevant
issues requiring the Court’s determination:
a. What is the
proper method to be employed by this Court in conducting an accounting of
profits;
b. What expenses
were proved by each defendant to have been incurred or were otherwise properly
deductible from the gross revenue obtained from the sale of the infringing
ROUNDUP READY® soybean crops in 2004 and 2005;
c. Applying that
proper method of accounting of profits, what were the profits made by each
defendant in 2004 and 2005 from the infringement that are to be disgorged;
d. Are the defendants
liable to pay prejudgment and post-judgment interest and if so, in what
amounts; and
e. Are the defendants
liable to pay costs and if so, what is the quantum.
Analysis
a. What is the
proper approach in this case to an accounting of profits?
[25]
For
the Reasons given in Rivett, the proper approach to an accounting of
profits is the differential profit approach.
Differential
Profit Approach
[26]
As
was stated in Rivett, the differential profit approach requires that the
Court compare the profits made by the infringer that are attributable to the
invention and the profits that the infringer would have made if he had used the
best non-infringing option. Using this approach, the analysis required is as
follows:
a. Is there a
casual connection between the profits made and the infringement? If there is
none, then there are no profits that require an accounting.
b. If there is a
causal connection, then what were the profits made by the infringer as a result
of the infringement? This amount I shall describe as the Gross Profits of
Infringement.
c. Is there a
non-infringing option that the infringer could have used?
d. If there is
no non-infringing option, then the Gross Profits of Infringement are to be paid
over to the patentee.
e. If there is a
non-infringing option, then what profit would the infringer have made, had he
used that option? This amount I shall describe as the Gross Profits of
Non-Infringement.
f.
Where
there was a non-infringing option available, the amount to be paid over to the
patentee is the difference between the Gross Profits of Infringement and the
Gross Profits of Non-Infringement. This sum is the profit that is directly
attributable to and that results from the infringement of the patent.
[27]
Unlike
the defendant in Monsanto Canada Inc. v. Schmeiser, [2001] F.C.J. No.
436; aff’d [2002] F.C.J. No. 1209; rev’d [2004] S.C.J. No. 29, in this case,
all defendants admit that in both 2004 and 2005 they sprayed their ROUNDUP
READY® soybean crops with a glyphosate herbicide and thus took
advantage of the Monsanto invention. Because this causal connection is
established, the Court must determine what profits were made by the defendants
as a result of the infringement. This amount, described earlier as the Gross
Profits of Infringement is the result obtained when one deducts the deductible expenses
of planting, cultivating and harvesting the ROUNDUP READY® soybean
crops from the gross revenue received from the sale of those beans.
b. What are the
deductible expenses of the defendants?
[28]
Exhibit
D-1, prepared by Mr. Kerkhof with his step-brothers, is a table entitled
“Soybean Costs for 2005”. The table purports to list a combination of actual
expenses and custom rates related to the infringing crop. It was entered for
information only and not as direct evidence of costs. At trial, Exhibit D-1
was described as an “aide-memoire,” and Mr. Kerkhof, who was the principal
defence witness, was indeed guided by the table.
[29]
In
Appendices A, B, and C to its written submissions, Monsanto has relied on Exhibit
D-1, with some modifications, to set out the quantum of profit it feels should
be handed over by each defendant. Monsanto writes:
After considering all the
admissible and reliable evidence in this case, after taking into consideration
the principles of variable cost accounting, and after weighing the equities in
this case, the amount of profit that should be disgorged by the defendants to
the plaintiffs in accordance with paragraph 7 of the judgment is as set out in
Appendices A, B, and C.
The plaintiffs submitted that the profit to
be disgorged by each defendant is as follows:
Lawrence Janssens - $16,760.67
Ronald
Janssens - $16,337.17
Alan
Kerkhof - $16,760.67
[30]
The
defendants, using the approach described at paragraph 35 of Rivett,
submit that they made no profit in 2005 and there is nothing to disgorge to the
plaintiffs.
[31]
All
of the evidence tendered by the defendants relates to the 2005 crop. Although
no evidence was submitted by any one of the defendants as to expenses in 2004,
counsel for the defendants submitted that deductions from 2004 gross revenue
should be the same as those supported by the evidence for 2005.
[32]
It
is the defendants’ burden to prove the costs that are to be deducted from the
gross revenues from sales. I accept and endorse the view expressed by Justice
Reed in Diversified Products Corp. et al. v. Tye-Sil Corp. Ltd. [1990]
F.C.J. No. 952, (1990), 32 C.P.R. (3d) 385 (F.C.T.D.) that any doubt in
determining the costs is to be resolved in favour of the plaintiffs.
In establishing an infringer's profits,
the plaintiff is required to prove only the defendant's sales; the burden then
shifts to the defendant to prove the elements of cost to be deducted from the
sales in arriving at profit. Any doubts as to the computation of costs or
profits is to be resolved in favour of the plaintiff. At the same time, this
does not mean that the infringer must prove expenses such as overhead and their
relationship to the infringing product in minute detail. But the defendant
bears the burden of explaining, at least in general terms, how claimed overhead
costs actually contributed to the production of the infringing product.
However, I am also guided by the fact that
the remedy the plaintiffs seek is essentially an equitable remedy and equity
must be done to both parties. The Federal Court of Appeal in Schmeiser
noted at paragraph 85 that if the application of accounting principles in a
mechanical fashion results in a quantum that not does reflect the economic
profit from the infringement, it is open to a trial Judge to adjust the
quantum, provided it is done on a “principled basis”.
[33]
It
was observed by counsel for the defendants that it is obvious that soybeans do
not plant, cultivate and harvest themselves, and thus that some expenses must have
been incurred in that process. However, the defendants provided no evidence on
which the Court, on a principled basis, could find that the 2004 expenses would
be of the same order as the 2005 expenses. The 2004 crop was planted in a
sharecropping arrangement with a third party who is not before the Court in
these proceedings. Accordingly, the Court finds that there is no basis on
which to credit the defendants with any expenses against the gross revenue
received from the 2004 crop.
[34]
The
following discussion relates to expenses that are to be credited against the
2005 revenues only. Although each defendant gave evidence, Mr. Kerkhof
provided the most detailed evidence and it was accepted by his co-defendants.
For ease of reading, the following relates to the evidence of Mr. Kerkhof, but
applies to each defendant.
Herbicide
[35]
The
defendants’ expenses for herbicide are supported by Exhibit D-2, an invoice
dated June 22, 2005, from South West Ag Partners Inc. Mr. Kerkhof testified
that he applied a glyphosate herbicide (brand name “Touchdown”) at a rate of
1.5 litres per acre for burndown, and 1 litre per acre for in-crop spraying.
On cross-examination, Mr. Kerkhof conceded that the price paid for the
herbicide was $7.30 per litre after a bulk discount and not $8.50 as indicated
in Exhibit D-1. On cross-examination, Mr. Kerkhof testified that a burndown
would have been conducted in preparation for seeding any crop. Monsanto’s
calculation of costs submitted at trial excludes the burndown application; however,
Monsanto’s own evidence concerning the patented technology is that the company
advises a glyphosate burndown prior to seeding (Exhibit P-1). Therefore, I am
satisfied that herbicide costs should be calculated on the basis of 2.5 litres
per acre, at $7.30 per litre. That results in a per acre cost of $18.25.
Fertilizer
[36]
Monsanto
accepts the defendants’ submission, supported by Exhibit D-3, that the cost of
fertilizer should be deducted from gross revenue at a rate of $40.50 per acre.
Seed
[37]
No
costs were incurred by the defendants in 2005 in relation to the infringing
soybean seed itself. Therefore no expense is properly deductible with respect
to seed cost.
Ammonium Sulphate
[38]
Exhibit
D-4 is an invoice from GroCrop Inc. which records the purchase of ammonium sulphate.
Mr. Kerkhof testified that in 2005 1 litre per acre of ammonium sulphate, at a
cost of $0.90 per litre was applied for burndown. It was applied again at 1
litre per acre in-crop, in combination with the glyphosate herbicide. Therefore,
on his evidence it was applied at the rate of 2 litres per acre. Monsanto’s
figures apparently exclude the burndown application but, as noted above, that
application should be included. Therefore, the cost for this product will be calculated
at $1.80 per acre.
Pesticide
[39]
Exhibit
D-5 is a record of a purchase of Matador and Agral from South West Ag. Partners
Inc. on August 5, 2005. Matador is a pesticide the defendants applied to the
infringing crop. Monsanto accepts the figure in Exhibit D-1 indicating that
the per-acre cost of this product was $5.42 in 2005. Mr. Kerkhof explained
that Agral is an additive one mixes with Matador. Monsanto accepts the figure
in Exhibit D-1 indicating that the per-acre cost of this product was $0.83.
This represents a total expense of $6.25 per acre for pesticides.
Crop
Insurance
[40]
The
figure of $10.43 per acre for crop insurance is not in dispute, in relation to
the 2005 crop.
Land Rent
[41]
The
figure of $125.00 per acre for land rent, for the defendants Lawrence Janssens
and Alan Kerkhof, is supported by Exhibit D-6 and is not in dispute. It is
admitted that the defendant Ronald Janssens incurred no expenses in relation to
land rent.
Other Costs
[42]
Exhibit
D-1 includes a variety of other expenses to which Mr. Kerkhof spoke in his
testimony, including harvesting, trucking, spraying, marketing, and interest on
loans. When these expenses are included, argue the defendants, they incurred a
net loss on the 2005 soybean crop.
[43]
The
difficulty with this submission is that the claimed expenses conflate a variety
of separate items, such as fuel costs and labour, which cannot be disentangled
on the evidence before the Court. Further, as counsel for the plaintiffs
elicited in cross-examination of Mr. Kerhhof, the custom rates relied upon by
the defendants to estimate the cost of spraying and trucking, for example, do
not account for the fact that the market value of these services is determined
by factors such as wage rates, insurance premiums, and licensing costs which
the defendants would not have incurred. For this reason the figures provided
by the defendants are not reliable and the Court will not allow deductions from
gross revenue for any of these expenses. Further, for the Reasons given in Rivett,
the defendants are not entitled to any deduction for their own labour.
[44]
On
the basis of the findings above, the per-acre expenses each of the defendants
shall be entitled to deduct from the admitted gross revenues in 2005 are as
follows:
Herbicide $18.25
Fertilizer $40.50
Ammonium
Sulphate $ 1.80
Matador &
Agral $ 6.25
Crop
Insurance $10.43
TOTAL $77.23
In addition, the defendants Alan Kerkhof
and Lawrence Janssens paid rent for their land and each is entitled to deduct a
further expense in this regard of $125.00 per acre.
[45]
Therefore,
the expenses that are properly deductible from the gross revenue for each
defendant, per acre in 2005 is as follows:
Lawrence
Janssens $202.23 per acre
Ronald
Janssens $77.23 per acre
Alan Kerkhof $202.23
per acre
c. Profits to be
Disgorged
[46]
Alan
Kerkhof and Lawrence Janssens each cultivated 100 acres of infringing soybeans
in 2005 and each earned gross revenues of $32,384.68. The expenses each
incurred to earn that revenue amounted to $20,223.00.
Accordingly, each made a Gross Profits of Infringement of $12,161.68
in 2005.
[47]
Ronald
Janssens cultivated 50 acres of infringing soybeans in 2005. His gross revenue
on the infringing crop was $16,192.34. The expenses incurred to earn that
revenue amounted to $3,861.50. Accordingly, he made a Gross
Profits of Infringement of $12,330.84 in 2005.
[48]
To
these numbers must be added the gross revenue of $10, 241.00 from the 2004
infringement. I am satisfied that it is reasonable that this profit be allocated
to the defendants in proportion to the acreage each planted in 2005. Therefore
Alan Kerkhof and Lawrence Janssens are each responsible for 40% of that profit
and Ronald Janssens is responsible for 20%.
[49]
Therefore,
the Gross Profits of Infringement that each defendant made on the ROUNDUP
READY® soybeans in 2004 and 2005 is as follows:
|
|
Alan Kerkhof
|
Lawrence Janssens
|
Ronald Janssens
|
|
2004
|
$ 4,096.40
|
$ 4,096.40
|
$ 2,048.20
|
|
2005
|
$12,161.68
|
$12,161.68
|
$12,330.84
|
[50]
Having
found that the proper method of accounting is the differential profit approach,
one must determine the differential between the Gross Profits of Infringement and the
profit each would have made had he used the next best non-infringing
alternative. For the Reasons given in Rivett, I find that the
appropriate comparator is conventional soybeans and further find that for every
$1.00 of profit that would be generated using bulk ROUNDUP READY®
soybeans, each defendant would have generated only $0.69 using conventional
beans. Thus, 69% of every dollar of profit generated using ROUNDUP READY®
soybeans would have been generated had the defendant used conventional beans.
[51]
On
the basis that the Gross Profit of Non-Infringement is 69 percent of the Gross
Profits of Infringement, the difference between these amounts for each
defendant, and thus the amount to be disgorged to the plaintiffs, is as
follows:
|
|
Alan Kerkhof
|
Lawrence Janssens
|
Ronald Janssens
|
|
2004
|
$1,269.88
|
$1,269.88
|
$ 634.94
|
|
2005
|
$3,770.12
|
$3,770,12
|
$3,822.56
|
[52]
Ronald
Janssens is being required to disgorge slightly more profit with respect to the
2005 crop than the other defendants despite the fact that his crop was only
half of their crop. This results as he grew the soybean crop on land he owned,
rather than rented. Therefore, while the other defendants were credited with
the lease costs of the land, he was not. No evidence was led of any similar
costs, such as property tax, that Ronald Janssens may have incurred with
respect to his land. I have considered whether there is a basis on which the
Court should provide some deduction for Ronald Janssens, but have concluded
that in the absence of any evidence any deduction by the Court would be
arbitrary and could not be said to have been made on a principled basis.
d. Prejudgment
and Post-Judgment Interest
[53]
For
the Reasons given in Rivett, the plaintiffs are entitled to prejudgment
interest. The defendants made no submission on prejudgment interest. I accept
the plaintiffs’ submission, as follows:
Under Ontario law, pre-judgment interest
on the profits award should begin to accrue from the date the defendants
obtained the revenue from their infringing activities at the rate of 2.8
percent for profits made in 2004 and 3.3 percent for profits made in 2005. The
amount of interest for profits made in 2004 should be compounded on a
semi-annual basis from January 15, 2005 to the date of judgment; the amount of
interest for profits made in 2005 should be compounded on a semi-annual basis
from January 15, 2006 to the date of judgment.
[54]
Post-judgment
interest is fixed at the rate of 4.0 percent, for the Reasons given in Rivett.
e. Costs
[55] The parties
jointly requested that the Court defer making any award of costs until the
other issues raised in this action had been determined. They both wished for an
opportunity to file written submissions. I will therefore allow the
plaintiffs two weeks to prepare a submission on costs not to exceed 10 pages in
length. The defendants shall have a further 10 days to respond
with a submission not to exceed 10 pages in length. The plaintiffs shall then
have 3 days to reply with a not to exceed 5 pages in length.
Summary and Conclusion
[56] I have
found that the total amount of profits to be disgorged by each of the defendants
Alan
Kerkhof and Lawrence Janssens for the 2004 crop is $1,269.88. The plaintiffs
are entitled to prejudgment interest on this sum at 2.8 percent from January
15, 2005, to the date of judgment compounded on a semi-annual basis.
[57] I have
found that the total amount of profits to be disgorged by each of the
defendants Alan
Kerkhof and Lawrence Janssens for the 2005 crop is $3,770.12.
The plaintiffs are entitled to prejudgment interest on this sum at 3.3 percent
from January 15, 2006, to the date of judgment compounded on a
semi-annual basis.
[58] I have
found that the total amount of profits to be disgorged by Ronald Janssens for the 2004
crop is $634.94. The plaintiffs are entitled to prejudgment interest on this
sum at 2.8 percent from January 15, 2005, to the date of judgment
compounded on a semi-annual basis.
[59] I have
found that the total amount of profits to be disgorged by the Ronald Janssens for the 2005
crop is $3,822.56. The plaintiffs are entitled to prejudgment
interest on this sum at 3.3 percent from January 15, 2006 to the date of
judgment compounded on a semi-annual basis.
[60] The
plaintiffs are entitled to post-judgment interest from
the date hereof until payment at the rate of 4.0 per cent. The matter
of costs is reserved pending the receipt of further submissions from the
parties.
[61] In
accordance with Rule 394 of the Federal Courts Rules, counsel for the
plaintiffs is directed to prepare a draft judgment, to be supplemented later,
if necessary with additional terms to be settled, and to circulate the draft to
counsel for the defendants for comment, within 30 days of the
filing of these Reasons. If the terms so proposed are not agreed upon by the
defendant, the Court would consider written submissions or will hear counsel by
teleconference, on the terms of Judgment.
“Russel W. Zinn”
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