Date: 20010418
Docket: T-568-98
Neutral Citation: FCT 2001 339
Ottawa, Ontario, this 18th day of April, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SHERIDAN GYMNASIUM EQUIPMENT LIMITED
Plaintiff
- and -
GYMNASIUM & HEALTH EQUIPMENT LIMITED,
THE WALTER FEDY PARTNERSHIP, and
WATERLOO REGION ROMAN CATHOLIC
SEPARATE SCHOOL BOARD
Defendants
[1] As part of the order granted in this matter, I gave the parties the opportunity to make submissions with respect to costs.
[2] The costs relate to the following:
1. The discontinuance by the defendants, Gymnasium & Health Equipment Limited and The Walter Fedy Partnership (the "defendants") of their summary judgment motion with respect to the patent claim.
2. The summary judgment motion of the defendants in relation to the copyright matter.
3. The defendants' motion to amend their defence and counterclaim.
4. The plaintiff's motion to amend its statement of claim.
[3] I have reviewed the submissions of counsel with respect to costs and I have come to the following conclusions:
1. Summary judgment motion re: patent allegation
This motion was withdrawn by the defendants shortly before the planned hearing date. The plaintiff has requested costs on a solicitor and client basis in the amount of $38,608.05. I am not prepared to award costs on a solicitor and client basis. There has been no serious misconduct by the defendants. The defendants have suggested that costs should be awarded on a "party and party basis to the plaintiff in any event of the cause in an amount to be determined by the trial judge". As well, the defendants urge that the costs should not be payable forthwith as contemplated by Rule 402 of the Federal Court Rules, 1998, SOR/98-106. I am not prepared to exercise my discretion to make these costs not payable forthwith. The plaintiff shall have its costs with respect to this motion on a party and party basis, to be assessed by the assessment officer and payable forthwith upon assessment.
2. Summary judgment motion of the defendants in relation to the copyright allegations
The defendants were not successful on this summary judgment motion. The plaintiffs have requested "solicitor and client costs prior to the adjournment of the matter on October 26, 1999 and costs fixed in the amount of $3,000 after October 26, 1999". I am not prepared to award costs on a solicitor and client basis to the plaintiff, but I am prepared to award costs to the plaintiff on a party and party basis in an amount to be fixed by the assessment officer.
3. Defendants' motion to amend defence and counterclaim
As this was the defendants' motion to amend its pleadings, I would award costs to the plaintiff in the amount of $900.00.
4. Plaintiff's motion to amend its statement of claim
Again, since this was the plaintiff's motion to amend its statement of claim, I would award costs to the defendant in the amount of $900.00.
ORDER
[4] IT IS ORDERED that:
1. In relation to the defendants' summary judgment motion with respect to the patent allegations, the plaintiff is awarded costs on a party and party basis, to be fixed by the assessment officer and payable forthwith upon assessment.
2. In relation to the defendants' summary judgment motion with respect to the copyright allegations, the plaintiff is awarded costs on a party and party basis, in an amount to be fixed by the assessment officer.
3. In relation to the defendants' motion to amend their pleadings, I would award costs to the plaintiff in the amount of $900.00.
4. In relation to the plaintiff's motion to amend its statement of claim, I would award costs to the defendant in the amount of $900.00.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 18, 2001