Date: 19980910
Docket: A-605-95
CORAM: MARCEAU J.A.
ROBERTSON J.A.
McDONALD J.A.
| IN THE MATTER OF the Trade Marks Act, 1953, I-2 |
|
| AND IN THE MATTER OF Trade Mark Registration Nos. 341,735; 341,736; 341,737; and 348,911 |
|
BETWEEN:
KERAMCHEMIE (CANADA) LIMITED
Appellant (Respondent)
- and -
KARAMCHEMIE GMBH
Respondent (Applicant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on Thursday, September 10, 1998)
MARCEAU J.A.
[1] We are all of the view that this appeal has some merit.
[2] Not with respect to whether the prothonotary, and after him the learned motions judge, could award costs on a solicitor-client basis retroactively, from the commencement of the proceedings. It is clear that the date of the reprehensible conduct invoked to support a request for solicitor-client costs is of utmost importance, since costs on that scale are quite exceptional and should be ordered only for the time the party has caused substantial and unnecessary difficulty or expense to the other party. It is not, however, decisive as the conduct may be seen merely as a sign that, from the beginning of the proceedings, the party was not acting in good faith. This is undoubtedly what the decision-makers here were convinced of and we have no reason to say that, in the exercise of their discretion, they were not entitled to do so.
[3] Where we do not agree with the impugned decision is when it purports to subject to the exceptional and punitive ruling the four interlocutory orders made in the course of the proceedings. Indeed, we see no reason to disagree with the position taken by the Court in Imperial Oil Ltd. et al v. Lubrizol Corp. et al, 67 C.P.R. (3d) 1, which stands for the proposition that a subsequent determination that costs already awarded in an order disposing of an interlocutory motion would have to be paid on a solicitor-client scale would constitute a departure from a significant component of an order that has become final and therefore would not be open to reconsideration except on appeal (see rule 344(6) and (7)).
[4] The order of the motions judge will therefore have to be varied so as to exclude from its scope the costs already awarded in the four interlocutory orders made in the course of the proceedings.
"Louis Marceau"
J.A.
Date: 19980910
Docket: A-605-95
CORAM: MARCEAU J.A.
ROBERTSON J.A.
McDONALD J.A.
| IN THE MATTER OF the Trade Marks Act, 1953, I-2 |
|
| AND IN THE MATTER OF Trade Mark Registration Nos. 341,735; 341,736; 341,737; and 348,911 |
|
BETWEEN:
KERAMCHEMIE (CANADA) LIMITED
Appellant (Respondent)
- and -
KARAMCHEMIE GMBH
Respondent (Applicant)
Heard at Toronto, Ontario, on Thursday, September 10, 1998.
Judgment rendered from the Bench on Thursday, September 10, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
FEDERAL COURT OF APPEAL
Date: 19980910
Docket: A-605-95
| IN THE MATTER OF the Trade Marks Act, 1953, I-2 |
|
| AND IN THE MATTER OF Trade Mark Registration Nos. 341,735; 341,736; 341,737; and 348,911 |
|
BETWEEN:
KERAMCHEMIE (CANADA) LIMITED
Appellant (Respondent)
- and -
KARAMCHEMIE GMBH
Respondent (Applicant)
REASONS FOR JUDGMENT
OF THE COURT
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