Lump Sum Costs? Ça “Dépens”!

Justice Grammond awarded Vidéotron Ltée and Groupe TVA inc. costs according to the Tariff after their success in 2022 CF 256, finding Technologies Konek inc. and Coopérative de Câblodistribution Hill Valley liable for retransmitting TVA Sports over the internet when they did not qualify as “retransmitters” under section 31 of the Copyright Act.

The Court noted that lump sum costs are not automatic—even in the sphere of intellectual property—simply because Tariff costs would amount to a small proportion of actual legal fees. In particular, courts have recently refused to award a lump sum when the losing party was not “sophisticated”. By contrast, the Court noted the [TRANSLATION] “tacit consent of large corporations” to lump sum costs in many intellectual property proceedings.

In this case, the plaintiffs are Québec’s media giants, while the defendants are small start-ups. The Court noted the obvious imbalance between the parties and reiterated the Court’s jurisprudence that [TRANSLATION] “one of the functions of the tariff is to ‘ensure that the amount awarded does not depend on whether a party has retained expensive or inexpensive counsel.’”

Justice Grammond also encouraged parties to make submissions on costs at the conclusion of the hearing or at least before the outcome of the litigation is known to facilitate lump sum costs in appropriate cases.

The Court awarded $54,593.33, including fees, disbursements and taxes, which the Vidéotron and Groupe TVA claimed in a Bill of Costs calculated under Column III. Justice Grammond declined to reduce the cost award by 15% on the grounds that one defendant, Libéo inc., successfully defended against the action. Instead, Libéo was not ordered to pay costs.

A copy of the decision (in its original French) can be found here.