PRACTICE |
Costs |
Canadian Olympic Assn. v. Olymel, Société en commandite
T-1564-97, T-1565-97
Lemieux J.
19/10/00
8 pp.
Motion for several orders concerning costs awarded to it by Court in resisting appeals by Canadian Olympic Association (COA) made under Trade-marks Act, s. 56, challenging Registrar's decisions granting Olymel's two trade-mark applications--Olymel seeking: doubling of party-and-party costs from date made offer to settle under Federal Court Rules, 1998, r. 420; directions costs assessed under Tariff B be maximum number of units in Column IV--R. 420(2) providing unless otherwise ordered by Court, where defendant making written offer to settle that is not revoked, and plaintiff fails to obtain judgment, defendant entitled to party-and-party costs to date of service of offer and double such costs thereafter--On September 29, 1997 Olymel writing to COA to confirm offer to settle appeals on condition appellant discontinue appeals on basis decisions of Opposition Tribunal rejecting oppositions with costs sustained--Offer open until hearing--Data General (Canada) Ltd. v. Molnar Systems Group Inc. (1991), 6 O.R. (3d) 409 (C.A.) and Walker Estate v. York Finch General Hospital (1999), 169 D.L.R. (4th) 689 (Ont. C.A.) standing for proposition under Ontario Rules, element of compromise not essential feature of offer to settle, but absence can be relevant factor to be considered in ordering otherwise under words "unless the Court orders otherwise" under somewhat analogous provision to r. 420 i.e. Ontario Rules of Civil Procedure, R. 49--In Apotex Inc. v. Syntex Pharmaceuticals International Ltd. (1999), 2 C.P.R. (4th) 368 (F.C.T.D.), Reed J. not specifically dealing with whether element of compromise integral part of offer to settle, but apparently assuming that it was--For purposes of cost award herein, arising not in context of action, but in context of appeal from Registrar of Trade-marks' decision, compromise essential element of offer to settle--Other considerations may apply when considering offer to settle liquidated or unliquidated damages in action--Purpose of offer-to-settle rule, as pointed out in Data General, to encourage termination of litigation by agreement of parties, more speedily and less expensively than by judgment of Court at end of trial--Mechanism enabling plaintiff to make serious offer respecting estimate of value of claim which will require defendant to give early, careful consideration to merits of case--Olymel's offer containing no element of compromise, but simply request that COA capitulate arguable appeal--Offer not advancing purposes of r. 420--Without element of compromise, offer to settle could simply become very easy mechanism for respondent to obtain double costs, not within intent of Rules--Further, r. 420 only applies where offer to settle not revoked--Olymel's offer terminated at hearing of appeals--"Unless otherwise ordered by the Court" conferring discretion upon court to award or direct less than doubling of party-and-party costs from date of service of offer--In circumstances, Olymel not entitled to doubling of costs from date of offer to settle--R. 407 providing unless Court otherwise ordering, party-and-party costs assessed in accordance with Column III of Table to Tariff B--Column III level costs designed to address case of average complexity involving average amount of work--COA's case not weak; offer to settle not genuine in that contained no element of compromise; amount of work proper consideration in determining scale for number of units under Column III--No reason to direct assessment officer to assess costs at maximum number of units--Trade-marks Act, R.S.C., 1985, c. T-13, s. 56--Federal Court Rules, 1998, SOR/98-106, rr. 407, 420--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49.