Milliken & Co. v. Interface Flooring Systems ( Canada ) Inc.
T-3016-92 / T-1212-95
Tremblay-Lamer J.
24/4/98
9 pp.
Motions seeking costs thrown away in action for copyright infringement-Plaintiffs claiming defendant infringed copyright by substantially reproducing design in carpet tile supplied and installed at Calgary International Airport in February 1991, September 1992-Two months before commencement of trial, defendant brought motion to amend statement of defence-Amendments pertaining, inter alia, to plaintiffs' standing to maintain action-Amendments allowed by Richard J.-Costs of motion awarded to plaintiffs in any event of cause-Plaintiffs arguing late amendments caused them prejudice in that defendant successful at trial on issue of standing-Prejudice should be compensated with award of costs thrown away-Costs thrown away those wasted for work rendered useless as result of amendment sought, either because issue withdrawn, abandoned or otherwise rendered moot-Costs thrown away must be distinguished from costs of and incidental to amendment which are costs incurred from time of amendment onwards and part of award of costs after event at trial-No reasons to award costs thrown away herein-Case disposed of on grounds unrelated to amendments-Onus on plaintiffs to prove existence of copyright-Fundamental to claim of infringement-Nothing to do with amendments made by defendant on issue of standing-Plaintiffs could not claim as costs thrown away costs incurred to prove case at trial-Intended to proceed with action despite deficiencies-Defendant should not be blamed for such deficiencies which were not result of amendments to statement of defence-Motions denied.