PRACTICE |
Costs |
Kettle Valley Winery Ltd. v. Vintners Quality Alliance of Canada
T-2129-98
2001 FCT 1422, MacKay J.
20/12/01
7 pp.
Motion for solicitor--and--client costs--Applications by wine producers in British Columbia concerning adoption, use of official marks by Vintners Quality Alliance of Canada (VQA) in form of appeals from Registrar--Hearing set down to commence on January 22, 2001--On January 5, applicants filed notice of motion seeking leave to amend notice of application by adding judicial review as procedural basis for challenging Registrar's decisions--On same day VQA advised Registrar, and on January 9 advised Court, applicants that withdrew publication of marks in question at request of federal government which proposed to establish official national standard for Canadian-produced wines--Tantamount to withdrawing claim to official marks published by Registrar in 1997--Applicants advised would not pursue motion for appeal or for leave to seek judicial review, but not discontinuing application as sought solicitor-client costs from VQA from date of VQA's notice--Relied on principles derived from awards in proceedings under Patented Medicines (Notice of Compliance) Regulations--VQA asked for party-and-party costs since application not discontinued-- Applicants' claim for costs dismissed; VQA's claim for costs allowed--Proceedings under NOC Regulations not model for dealing with costs, about which no consent, in these proceedings--Under those regulations, first step for party seeking to obtain approval for marketing prescription drug already subject to patent to serve notice of allegation on patent holder, who may then apply to Court for order of prohibition directed to Minister to decline approval of notice of compliance--In this case applicants seeking to appeal or for judicial review of Registrar's decision to publish notice of adoption, use of certain marks as official marks by VQA-- Since statute provides no system for notice of application for, and possible objection to, official mark, or for appeal of Registrar's decision, appropriate process for questioning that decision appears to be by judicial review--Respondent should not be required to pay costs on any basis--No basis to assume applicants would have been successful on application and no basis for award of costs even on party-and-party basis--VQA entitled to costs because applicants not discontinuing application, and unlikely application would have succeeded-- Also respondent agreed would not, after date of agreement, seek to enforce claim to official marks--Pursuing application thereafter not necessary course of action--Patented Medicines (Notice of Compliance) Regulations, SOR/93-133