ottawa sign with aitken lee llc team

Costs Awarded on Appeal Clarifying FC Model Protective Order

Justice Go recently released her costs order and reasons arising from Surewerx USA Inc. v. Dentec Safety Specialists Inc., 2022 FC 1190. In that case, Dentec appealed an order of Case Management Judge Tabib in which she granted Surewerx’s motion challenging the designation of the identity of Dentec’s manufacturer as “Solicitor’s Eyes Only” information under a Protective Order based on the FC Model Protective Order. Justice Go dismissed the appeal and held that CMJ Tabib had not applied the wrong legal test or erred in removing the SEO designation.

Justice Go reaffirmed that the proper test to be applied on a challenge to a SEO designation is the subjective-objective test set out in AB Hassle v Canada (Minister of National Health and Welfare)(1998), 83 CPR (3d) 428. Go J. held that CMJ Tabib had not erred in finding that Dentec failed to establish, on a balance of probabilities, that it could be harmed if the identity of its manufacturer was disclosed to Surewerx.

Surewerx sought a lump sum costs award representing approximately 25% of its legal fees or, in the alternative, an amount reflecting the high end of Column IV of Tariff B due to Dentec’s pursuit of a wide range of unsuccessful arguments, the complexity of the appeal and its importance to the legal profession. Dentec argued that no costs should be awarded or, in the alternative, that costs should be awarded in accordance with the mid-point of Column III of the Tariff.

While the factual background in the appeal was not complex and the issues were narrow, Justice Go acknowledged that the appeal was important for the profession and had implications for other litigants beyond the immediate parties. The appeal offered the Court an opportunity to clarify the test to be used in challenging a SEO designation under a Protective Order. Surewerx’s acknowledgement that clarity was needed from the Court on the appropriate test regarding SEO designations undermined its complaints that Dentec pursued a wide range of legal arguments.

Justice Go awarded Surewerx a lump sum of $3,680, exceeding the mid-Column III amount, to reflect that Surewerx alone should not bear the burden of clarifying the terms of the FC Model Protective Order.

A copy of the costs order and reason can be found here.