Dow Chemical Company v. Nova Chemicals Corporation, 2016 FC 91

The Court awarded the Plaintiffs a lump sum payment of $6.5 million for their costs in this case. The amount consisted of $2.9 million for legal fees and $3.6 million for the Plaintiffs' reasonable and necessary disbursements. In the underlying proceeding, the Plaintiffs were granted a declaration that the Defendant had infringed Canadian Patent No. 2,160,705 (2014 FC 844). There was no dispute that it was a most complex case with many complicated concepts and issues.

The Plaintiffs' submissions showed that Dow's actual total legal costs were $9.6 million. The submissions also stated that should the Plaintiffs' fees be assessed under Column V of Tariff B, their costs would only amount to $1,099,725, which was 11% of the Plaintiffs' total legal costs. The Court noted that costs pursuant to Column V of Tariff B would be totally inadequate in this case; it was not acceptable to only recoup 11% of one's costs in such a complex case.

After considering the submissions of both parties and the jurisprudence of this Court, the Court held that a lump sum award for costs was appropriate in this case. The Court found that the Plaintiffs' lump sum of $2.9 million for their costs for legal fees to be a reasonable amount. The Court was also satisfied that the disbursements were reasonable.