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Date: 20160816

Dockets: T-2090-14
T-1862-15
T-1726-15
T-1234-15
T-1085-15
T-897-15
T-745-15
T-477-15
T-269-15
Ottawa, Ontario, August 16, 2016
PRESENT:

The Honourable Mr. Justice Gascon


Docket: T-2090-14

BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

ATTORNEY GENERAL OF CANADA


Defendant

Page: 2

Docket: T-1862-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

PARKS CANADA
Defendant

Docket: T-1726-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

LIBRARY OF PARLIAMENT
Defendant

Page: 3

Docket: T-1234-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

ATTORNEY GENERAL OF CANADA


Defendant

Docket: T-1085-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

ATTORNEY GENERAL OF CANADA


Defendant

Page: 4

Docket: T-897-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

CANADIAN TRANSPORTATION AGENCY


Defendant

Docket: T-745-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

BANK OF CANADA
Defendant

Page: 5

Docket: T-477-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

CANADIAN FOOD INSPECTION AGENCY


Defendant

Docket: T-269-15
BETWEEN:
1395804 ONTARIO LTD., OPERATING AS
BLACKLOCKS REPORTER
Plaintiff
and

ATTORNEY GENERAL OF CANADA


Defendant

Page: 6
ORDER ON COSTS
WHEREAS, in a single judgment issued on June 27, 2016, the Court dismissed the nine
motions for appeal brought by the Plaintiff, 1395804 Ontario Ltd. (operating as Blacklocks
Reporter) [Blacklock], against nine orders issued on March 3, 2016 [the Orders] by Madam
Prothonotary Tabib imposing a stay of proceedings in nine different actions [the Nine Actions]
filed by Blacklock against the Defendants, namely six federal government departments
represented by the Attorney General of Canada [the AGC] and three Crown corporations and
agencies (the Bank of Canada, the Library of Parliament and the Canadian Transportation
Agency);
AND WHEREAS the Courts judgment ordered the parties to file written submissions
on the issue of costs;
UPON reading the written costs submissions filed by Blacklock and by each of the AGC,
the Bank of Canada, the Library of Parliament and the Canadian Transportation Agency
[together, the Defendants];
AND UPON determining that, for the following reasons, costs shall be awarded to each
of the Defendants in the lump sum amounts detailed below:
1. Rule 400(1) of the Federal Courts Rules, SOR/98-106 [Rules] provides that the Court
shall have full discretionary power over the amount and allocation of costs and the
determination of by whom they are to be paid.

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2. In the exercise of its discretion, the Court is invited to consider a non-exhaustive list of
factors at Rule 400(3). These factors include, among other things, the result of the
proceeding, the importance and complexity of the issues, any written offer to settle, the
amount of work required, and the conduct of the parties.
3. As per Rule 407, party-and-party costs are assessed in accordance with column III of
the table to Tariff B, unless the Court decides otherwise. The costs are typically
assessed at the mid-point of column III.
4. As a general rule, a successful party should recover its entire costs without reduction
(Canada v IPSCO Recycling Inc, 2004 FC 1083 at para 37).
5. Blacklock submits that an appropriate costs order for both the nine appeals before this
Court and the original motions before Prothonotary Tabib should add up to a total of
$5,000.00 plus disbursements for all Defendants. Blacklock claims that it would be
unfair for it to face multiple costs orders in respect of appeals which were closely
connected and driven by the main dispute between Blacklock and the AGC, which were
all dealt with in the same judgment, and where the participation of Defendants other
than the AGC was only ancillary.
6. The Defendants each come up with a higher proposal in their respective submissions,
supported by detailed bills of costs. While there are slight differences in the bills of
costs submitted by the AGC, the Bank of Canada, the Library of Parliament and the
Canadian Transportation Agency, suffice to say that they are all based on column III of
the table to Tariff B, and refer to units for 1) preparation and filing of a contested
motion, 2) appearance on a motion, 3) preparation for hearing and 4) preparation and

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filing of written costs submissions requested by the Court. As a reference, the AGCs
bill of costs adds up to $2,835.00 plus disbursements of $470.99. The Defendants bills
of costs also each contain a claim to double the amount of costs to account for the offer
to settle they made to Blacklock.
7. I do not agree with Blacklocks submissions and instead side with the Defendants on
many fronts relating to the costs issue. However, further to my review of the detailed
costs claims by the Defendants and of their offers to settle, and considering the
particular circumstances of this case, I am not persuaded that the Defendants, and more
specifically the Defendants other than the AGC, are entitled to the full amount of costs
they described in their respective submissions.
The Rule 400(3) Factors
8. Looking at the Rule 400(3) factors relevant to this matter, the result of the proceeding
evidently supports an award of costs in favor of the Defendants as the nine appeals filed
by Blacklock were dismissed by the Court.
9. I further agree with the Defendants that the appeals raised important issues regarding
the unnecessary duplication of legal resources and the real risk of contradictory
decisions in the Nine Actions. The appeals also involved relatively complex issues
regarding the considerations to be retained by the Court in determining whether a stay
of proceedings should be granted. In fact, in the judgment dismissing Blacklocks
appeals, I discussed in detail the so-called White factors developed by the Court in
White v Ebf Manufacturing Ltd, 2001 FCT 713 and the extent to which they applied (or
did not apply) to the appeals brought by Blacklock.

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10. I pause to observe that, in its submissions on costs, Blacklock itself acknowledges that
the issues raised by its appeals were of moderate complexity and that the questions
relating to the principles of comity and issue estoppel were novel.
11. The Rule 400(3) factors include any written offer to settle, and it is not disputed that
the Defendants each offered to settle their respective appeals on the basis of Blacklock
agreeing to discontinue the appeal on a without cost basis and that, in exchange, the
Defendants would forego half of the costs awarded in their favor by Prothonotary Tabib
in the Orders. These offers were clear and unequivocal, were presented in a timely
fashion, and were not withdrawn.
12. Furthermore, as reflected by the extensive written submissions filed by the parties and
the oral pleadings at the hearing before this Court, I am also satisfied that Blacklocks
motions for appeal required a significant amount of work for the parties.
13. Turning to the conduct of the parties, I agree with Blacklock that this is not a situation
where Blacklock can be faulted for any behavior that tended to unnecessarily lengthen
the duration of the proceeding. Nor was it one where Blacklock failed to make any
admission or where it took any steps that were improper, vexatious or unnecessary.
14. In those circumstances, I conclude that, in light of the applicable Rule 400(3) factors,
the Defendants are at first glance entitled to their costs on the basis of the mid-point in
column III of the table to Tariff B, which is the usual fall-back position for costs
assessments in cases of average or usual complexity (Air Canada v Thibodeau, 2007
FCA 115 [Air Canada] at para 21). The Defendants have in fact not requested costs
higher than the amounts specified in column III, and I see no reasons in this case to

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depart from this general rule.
15. Turning to the more specific items described by the Defendants in their respective bills
of costs, I first observe that the duration of the hearing on Blacklocks motions for
appeal of the Orders was 2.5 hours, not 3 hours. In addition, I do not agree that, in the
context of a motion where units are claimed for the hours of appearance on such
motion, costs can also be also granted for preparation for hearing as this would
amount to double-counting. Finally, I consider that it would not be reasonable nor
justified to allot the same number of units for the preparation of the written costs
submissions as for the preparation of the contested motion itself, since the former
evidently involved a much lesser amount of work.
16. The Defendants bills of costs therefore need to be adjusted accordingly. Using the
AGCs bill of costs as a reference, these adjustments reduce the base costs to some
$1,820.00.
Rule 420 and the Offer to Settle
17. Regarding the offer to settle, the Defendants claim that they not only made written
offers to settle to Blacklock but that such offers meet the requirements of Rule 420(2)
entitling them to be awarded double costs.
18. Rule 420(2) provides that, unless otherwise ordered by the Court, a defendant shall be
entitled to costs at double the party-and-party costs where such defendant makes a
written offer to settle and the plaintiff obtains a judgment less favourable than the terms
of the offer to settle.

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19. Blacklock objects to these claims to double costs and argues that the offers to settle
made by the Defendants did not contain the element of compromise required to qualify
as an offer to settle contemplated by Rule 420(2) (Apotex Inc v Sanofi-Aventis, 2012 FC
318 [Sanofi] at paras 31-33).
20. I agree with Blacklock that, in order to be acceptable under Rule 420(2), an offer to
settle needs to incorporate an element of compromise. However, contrary to Blacklocks
position, I do not consider that offering to forego half of the costs awarded by
Prothonotary Tabib in her Orders, as the Defendants did in this case, can be qualified as
an insufficient compromise falling below the requirements for a valid offer to settle
under Rule 420.
21. The offer made by the Defendants may perhaps lie at the low end of the spectrum, but
this is not a situation where all the benefits of the offer to settle are one-sided, as
Blacklock would have received something further to the offer to settle (Sanofi at
para 32). Of course, more generous compromises could perhaps have been offered by
the Defendants, such as an offer of monetary payment or another form of recognition of
copyright violation desired by Blacklock. However, that does not mean that the offers
by the Defendants to forego a portion of the costs they earned in the Orders appealed by
Blacklock did not contain an element of compromise and an incentive to accept. On the
contrary, I find that they did and that they constitute a proper offer to settle.
22. That being said, awarding costs at double the usual party-and-party rate is not automatic
and is subject to the discretion of the Court, and I can order otherwise depending on the
particular circumstances before me (Sanofi at para 34). In this case, in determining the

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ultimate costs amount to be granted, I am thus mindful that the compromise offered by
the Defendants was minimal.
Other factors
23. I also cannot ignore the fact that, even though Nine Actions are involved and as many
motions for appeal were filed by Blacklock, the Defendants other than the AGC mostly
relied upon and reiterated the submissions put forward by the AGC, both in their written
representations and at the hearing before this Court.
24. In the circumstances, I am therefore not convinced that the interests of justice would be
well served by granting the full amounts of costs claimed by the Defendants other than
the AGC. I further note that the amounts claimed in the Nine Actions filed by Blacklock
are modest, ranging from $10,000 to $55,000 when they are specified. That militates in
favor of using my discretion not to award, on these appeals of orders dealing with an
interlocutory matter, costs that could end up being punitive or disproportionate to the
underlying litigation between the parties.
25. An award of costs is not an exercise in exact science. I thus conclude that it would be
more appropriate to award a lump sum based roughly on the mid-point of column III of
the table to Tariff B, bearing in mind the Rule 400(3) factors listed above, the
adjustments needed to be made to the Defendants bills of costs, the content of the
offers to settle made by the Defendants, and the more secondary role played by the
Defendants other than the AGC.

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26. While discretion should be prudently exercised, it must be borne in mind that the
award of costs is a matter of judgment as to what is appropriate and not an accounting
exercise (Consorzio del Prosciutto di Parma v Maple Leaf Meats Inc, 2002 FCA 417
[Consorzio] at para 10). A lump sum award of costs presents the advantage of saving
costs to the parties that would otherwise be incurred in the assessment process
(Consorzio at para 12).
27. In the circumstances of this case, and having regard to the submissions of all parties, I
therefore award the AGC single costs of $3,750.00, inclusive of disbursements, and I
award each of the Bank of Canada, the Library of Parliament and the Canadian
Transportation Agency costs of $2,250.00, inclusive of disbursements;
AND UPON determining that, in the June 27, 2016 judgment, the Orders of Prothonotary
Tabib were upheld and that there are no reasons to reconsider the awards of costs issued by
Prothonotary Tabib in her Orders;
AND UPON concluding that the costs as awarded are appropriate and satisfy the general
objectives of costs award as they serve to provide compensation, promote settlement and deter
abusive behavior (Air Canada at para 24);
THIS COURT ORDERS that:
1.

The Plaintiff Blacklock shall pay to the Defendant AGC costs in the total amount of
$3,750.00, inclusive of disbursements.

2.

The Plaintiff Blacklock shall pay to the Defendant Bank of Canada costs in the total
amount of $2,250.00, inclusive of disbursements.

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3.

The Plaintiff Blacklock shall pay to the Defendant Library of Parliament costs in the
total amount of $2,250.00, inclusive of disbursements.

4.

The Plaintiff Blacklock shall pay to the Defendant Canadian Transportation Agency
costs in the total amount of $2,250.00, inclusive of disbursements.

5.

All costs awarded shall by payable by the Plaintiff Blacklock within 30 days from the
date of this order.

6.

The costs awarded are for the appeals brought by the Plaintiff Blacklock and do not
modify the costs awarded by Prothonotary Tabib in the Orders.

Denis Gascon
Judge