Philipp Morris Products S.A. and Rothmans, Benson & Hedges Inc. v. Marlboro Canada Limited and Imperial Tobacco Canada Limited, 2015 FCA 9 (Justices Pelletier, Gauthier and Scott)
January 14, 2015
James Green and James Buchan, Gowling, Lafleur, Henderson, for the Appellants
François Guay and Jean-Sébastien Dupont, Smart & Biggar, for the Respondents.
This is an appeal from an order of Justice de Montigny awarding the Respondents $1,069,239.36 in legal costs and disbursements following a trademark dispute.
A decision with respect to costs will only be overturned on appeal if the trial judge was plainly wrong or if the decision was based on a wrong principle. In this case, the Federal Court of Appeal concluded that the trial judge committed no error in principle in awarding a lump sum based on a percentage of the actual costs incurred by a party given that a departure from Tariff B is contemplated by Rule 400(4) of the Rules. The Federal Court of Appeal refused to conclude that the amount of $1,069,239.36 was excessive given that there are no set boundaries with respect to the amount that can be awarded in terms of costs. The Federal Court of Appeal also noted that the Appellants themselves had previously argued that it was acceptable to claim one third (1/3) of their actual costs as a lump sum, which is a little higher than the percentage actually awarded by Justice de Montigny to the Respondents. Lastly, the Federal Court of Appeal concluded that Justice de Montigny committed no error in making his cost award subject to Rule 420.
Appeal dismissed with costs in the amount of $8,000.
By: Cindy BĂ©langer, Legault, Joly, Thiffault LLP