Date: 20021114
Docket: A-367-01
Neutral citation: 2002 FCA 448
CORAM: ISAAC J.A.
NOËLJ.A.
SHARLOW J.A.
BETWEEN:
PERCY SCHMEISER
and
SCHMEISER ENTERPRISES LTD.
Appellants
(Defendants)
and
MONSANTO CANADA INC.
and
MONSANTO COMPANY
Respondents
(Plaintiffs)
Supplementary reasons as to costs of the appeal
Heard by videoconference at Ottawa, Ontario, Toronto, Ontario and
Saskatoon, Saskatchewan on November 14, 2002.
Judgment delivered at Ottawa, Ontario on November 14, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20021114
Docket: A-367-01
Neutral citation: 2002 FCA 448
CORAM: ISAAC J.A.
NOEL J.A.
SHARLOW J.A.
BETWEEN:
PERCY SCHMEISER
and
SCHMEISER ENTERPRISES LTD.
Appellants
(Defendants)
and
MONSANTO CANADA INC.
and
MONSANTO COMPANY
Respondents
(Plaintiffs)
SUPPLEMENTARY REASONS FOR JUDGMENT (COSTS)
(delivered from the Bench at Ottawa, Ontario
November 14, 2002)
SHARLOW J.A.
[1] In reasons for judgment dated September 4, 2002, this Court indicated that the appeal and cross-appeal of the decision of Mr. Justice MacKay in Monsanto Canada Inc. v. Schmeiser (2001), 202 F.T.R. 78, 12 C.P.R. (4th) 204, [2001] F.C.J. No. 436 (QL) would be dismissed. Issuance of the formal judgment was deferred to give the parties an opportunity to make written submissions on costs. Those submissions have now been received and reviewed, and oral submissions heard by videoconference.
[2] At trial, the respondents alleged that the appellants had infringed the respondents' Canadian patent number 1,313,830 in 1998 by planting for harvest a crop of glyphosate resistant canola having a gene or cell that is the subject of the patent. Mr. Justice MacKay found that certain claims of the patent had been infringed and granted the respondents an injunction, an order for delivery up, an award of damages (only against Schmeiser Enterprises Ltd.) in the amount of $19,832, pre-judgment interest, post-judgment interest, and costs.
[3] The appellants appealed the finding of infringement, the award of damages and the granting of the injunction. The respondents cross-appealed on a number of grounds, including the argument that the award of damages was too low and should be increased to $105,935. Counsel for the respondents reduced that claim to $35,034, only toward the end of the hearing. The appeals and cross-appeals failed.
[4] Having carefully considered the written and oral submissions of the parties, including information about an offer of settlement made by the respondents, and bearing in mind that success was divided, we are all of the view that the parties should bear their own costs of this appeal.
"K. Sharlow"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-367-01
STYLE OF CAUSE: PERCY SCHMEISER and SCHMEISER ENTERPRISES LTD.
and
MONSANTO CANADA INC.and
MONSANTO COMPANY
PLACE OF HEARING: Ottawa, Ontario, Toronto, Ontario,
Saskatoon, Saskatchewan by videoconference
DATE OF HEARING: November 14, 2002
REASONS FOR JUDGMENT OF THE COURT: (Isaac, Noël, Sharlow J.J.A.)
RENDERED FROM THE BENCH BY: The Honourable Justice Sharlow
APPEARANCES BY:
Terry J. Zakreski For the Appellant
Arthur B. Renaud For the Respondent
SOLICITORS OF RECORD
Priel, Stevenson, Hood & Thornton For the Appellant
Saskatoon, Saskatchewan
Sim, Hughes, Ashton ; & McKay LLP For the Respondent
Toronto, Ontario
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