Docket: A-25-17
Citation:
2017 FCA 185
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CORAM:
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STRATAS J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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1395804 ONTARIO
LTD., OPERATING AS BLACKLOCK'S REPORTER
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on September 12,
2017).
STRATAS J.A.
[1]
Blacklock’s Reporter appeals from the costs
order of the Federal Court (per Barnes J.): 2016 FC 1400. The Federal
Court dismissed its action for breach of copyright and awarded the respondent
$65,000, all-inclusive plus post-judgment interest.
[2]
In our view, in awarding costs the Federal Court
did not err in law. It correctly identified the legal considerations that could
affect its exercise of discretion.
[3]
Thus, in order to succeed in this appeal, the
appellant has to persuade us that the Federal Court committed palpable and
overriding error: Hospira Healthcare Corporation v. Kennedy Institute of
Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331. As is well-known, and as
the appellant candidly and properly admits, this is a high standard: Benhaim
v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, citing Canada v.
South Yukon Forest Corporation, 2012 FCA 165, 4 B.L.R. (5th) 31 at para. 46
and J.G. v. Nadeau, 2016 QCCA 167 at para. 77.
[4]
We are not persuaded that the Federal Court
committed palpable and overriding error.
[5]
The appellant submits that the Federal Court did
not consider whether the issues before it were novel and of public
significance. We disagree. The Federal Court considered the issues before
it—here, primarily the issue of fair dealing—to be well-settled in the
jurisprudence and, thus, neither novel nor of public significance.
[6]
The appellant offers a case commentary written
after the Federal Court’s judgment suggesting otherwise. This does not persuade
us that on these particular facts the Federal Court committed palpable and
overriding error.
[7]
The Federal Court’s discretionary costs award
was based on the factors set out in the Federal Courts Rules, SOR/98-106
and was amply supported on the evidentiary record before it. The Federal Court
considered, among other things, the respondent’s success in the litigation and
the one-sided nature of the outcome, the appellant’s litigation strategy, the
existence of a settlement offer, the complexity of the litigation, and the
actual costs of the respondent. In relying on these permissible, well-recognized
factors and in applying them to the facts before it, the Federal Court did not
commit palpable and overriding error.
[8]
In argument, the appellant submits that the
Federal Court placed inordinate weight on the one-sided nature of the outcome.
The appellant submits that the Federal Court said in effect that the case never
should have been brought. Even accepting that characterization, under the
standard of palpable and overriding error we cannot second-guess the weight the
Federal Court accorded to the relevant factors, without more.
[9]
Also in argument, the appellant submits that the
Federal Court should not have relied upon the appellant’s non-acceptance of the
respondent’s settlement offer because this was a test case designed to settle
issues arising in related proceedings. Again, this seems to us to be an issue
of weight. Further, to the extent this was a test case, this could have
prompted a higher level of activity by the respondent and, thus, would have
justified an elevated costs award.
[10]
The Federal Court’s use of the settlement offer
was clearly authorized by Rule 420(2) and was supportable on these facts.
[11]
Therefore, we will dismiss the appeal with costs
fixed in the amount of $3,500, all-inclusive.
"David Stratas"
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