Date: 20130924
Docket: A-328-12
Citation: 2013 FCA 220
CORAM: NOËL
J.A.
TRUDEL J.A.
MAINVILLE
J.A.
BETWEEN:
BELL HELICOPTER TEXTRON
CANADA LIMITÉE
Appellant
and
EUROCOPTER
société par actions simplifiée
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
Bell
Helicopter Textron Canada Limitée (“Bell Helicopter”) and Eurocopter were
involved in patent infringement litigation which resulted in a judgment dated
January 30, 2012, bearing citation number 2012 FC 113 (the “Patent Infringement
Judgment”), in which Martineau J. of the Federal Court (the “Judge”):
(a) declared that Bell Helicopter had infringed
claim 15 of Canadian Patent No. 2,207,787 (the ‘787 Patent) owned by Eurocopter
by using a helicopter landing gear known as the “Legacy landing gear”;
(b) declared that Bell Helicopter had not infringed
claim 15 of the ‘787 Patent by using and selling a helicopter landing gear
known as the “Production landing gear”;
(c) enjoined Bell Helicopter from manufacturing,
using or selling the Legacy landing gear or any similar landing gear until the
‘787 Patent expires, or is otherwise held to be invalid;
(d) declared that Eurocopter was entitled to all
damages, including punitive damages, as a result of its infringement of claim
15 of the ‘787 Patent, the quantum of which is to be determined in subsequent
hearings; and
(e) invalidated all the other claims of the ‘787
Patent.
[2]
Bell
Helicopter and Eurocopter respectively appealed and cross-appealed the Patent
Infringement Judgment. Both the appeal and the cross-appeal were dismissed by
this Court for reasons issued concurrently with these reasons.
[3]
Subsequent
to the Patent Infringement Judgment, the Judge issued another judgment dated
July 3, 2012 and cited as 2012 FC 842 concerning the issue of costs (the “Costs
Judgment”). Under the Costs Judgment, Bell Helicopter was ordered to pay
fifty-percent (50%) of Eurocopter’s costs (calculated at the upper end of
column IV of Tariff B) with respect to reasonable fees and expenses for one
senior counsel, two junior counsel, expert witnesses, one in-house counsel, one
technical representative, and other taxable pre-trial, trial and post-trial
costs and disbursements related to the litigation leading to the Patent
Infringement Judgment.
[4]
These
reasons concern Bell Helicopter’s appeal from that Costs Judgment.
[5]
The
Judge found that Eurocopter had been overall the most successful party in the
Patent Infringement Judgment, and was therefore entitled to costs. However, in
light of Bell Helicopter’s partial success in defending its Production landing
gear, he reduced these costs by 50%. He also took into account that Bell
Helicopter had unnecessarily lengthened the proceeding by failing to admit
facts that should have been admitted.
[6]
Bell
Helicopter submits that success was mixed in the Patent Infringement Judgment,
and that each party should consequently bear its own costs. It also disputes that
it unnecessarily lengthened the proceedings. In any event, Bell Helicopter alleges
that the Judge erred by awarding costs with respect to Eurocopter’s technical
representative, and that Eurocopter failed to support its costs submissions
with an affidavit.
[7]
A
trial judge enjoys considerable discretion in fashioning a costs award, and
that judge’s decision on costs will generally be insulated from appellate
review: Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs
and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38 at paras. 47 and 49; Odhavji
Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 77.
[8]
An
appellate court should thus only intervene where the costs award is based on an
error in principle or is plainly wrong: Hamilton v. Open Window Bakery Ltd.,
2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27; British Columbia (Minister of
Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at para.
43; Apotex Inc. v. Merck & Co., 2006 FCA 324, 55 C.P.R. (4th) 81 at
paras. 3 and 4; Buhlman v. Buckley, 2012 FCA 9, 346 D.L.R. (4th)
251 at para. 8.
[9]
In
this case, the Judge found that Eurocopter was overall the most successful
party. I agree. The Judge found that Bell Helicopter’s Legacy landing gear infringed
the ‘787 Patent, and, as a result of that infringement he consequently issued
an injunction prohibiting Bell Helicopter from using or selling that landing
gear, ordered the destruction of those landing gears which had been
manufactured by Bell Helicopter, and further declared that Eurocopter was
entitled to damages, including punitive damages.
[10]
Though
the Judge invalidated the claims of the ‘787 Patent relating to the embodiment
of the invention with the front cross piece inclined backwards, those claims
were of little or no concern to the infringement action initiated by
Eurocopter. The invalidation of those claims was a side issue which had little practical
effect on the overall litigation. Moreover, though Bell Helicopter was
successful with respect to its Production landing gear, the Judge took that
factor into account by reducing Eurocopter’s costs award by 50%.
[11]
The
Judge also found that Bell Helicopter had “unnecessarily lengthened the
proceeding by failing to admit facts that should have been admitted” (Costs
Reasons at para. 49) giving rise to a consideration of the factors set out
under paragraphs 400(3)(i) and (j) of the Federal Courts Rules,
SOR/98-106. The Judge found that Bell Helicopter’s own expert witness, Dr.
Hodges, admitted towards the end of the trial that the Legacy landing gear
embodied all the essential elements of the ‘787 Patent. This was an admission
which, in the Judge’s view, should have been made at the outset of the trial.
[12]
Bell
Helicopter submits that though it never admitted that the Legacy landing gear
embodied the essential elements of the ‘787 Patent, it nevertheless never
denied that fact: Bell Helicopter’s Costs Memorandum at para. 58. This was
clearly not what the Judge understood from the dynamics of the litigation
before him. At best, Bell Helicopter may have maintained an ambiguous position
with respect to the Legacy landing gear. The Judge’s assessment of the dynamics
of the trial was that by maintaining this ambiguity, Bell Helicopter unduly
complicated and prolonged the litigation. That was an assessment which the Judge
was entitled to make and which was supported by the evidence.
[13]
Finally,
Bell Helicopter submits that the Judge erred by awarding costs with respect to
Eurocopter’s technical representative Mr. Prud’homme Lacroix. Though Mr.
Prud’homme Lacroix did not testify as an expert, the Judge found his testimony
to be particularly relevant. It should be noted that Mr. Prud’homme Lacroix is
one of the co-inventors of the landing gear disclosed in the ‘787 Patent, and
that his testimony provided the Judge with important technical information
concerning the invention. Moreover, he was the de facto representative
and technical advisor of Eurocopter throughout the proceedings in the Federal
Court. It was well within the Judge’s discretion to award costs for Mr.
Prud’homme Lacroix, particularly since the Judge was in a position to assess
his contribution throughout the long trial.
[14]
As
for Bell Helicopter’s submission that affidavit evidence should have been presented
by Eurocopter in support of its motion for directions on costs, I will simply
note that arguments for directions on costs may be addressed without affidavit
evidence insofar as they are supported by evidence adduced at the trial or the
Judge’s knowledge of the trial: Wellcome Foundation Ltd. v. Apotex Inc.
(2001), 12 C.P.R. (4th) 25 (FCTD) at para. 11(3); Eli Lilly v.
Apotex Inc., 2011 FC 1143 at para. 8. In this case, Bell Helicopter has
failed to convince me that any of the Judge’s directions on costs were not so
supported.
[15]
When
viewed in the overall context of the proceedings, the Judge’s directions on
costs were based on correct principles. These directions were certainly not
“plainly wrong”.
[16]
I
would therefore dismiss this appeal, with costs in favour of Eurocopter.
"Robert M. Mainville"
“I
agree.
Marc Noël J.A.”
“I
agree.
Johanne Trudel J.A.”
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