Arden V. MacLean

Following dismissal of an application seeking enforcement of letters rogatory issued by a United States court in foreign patent litigation, the court addressed costs.

The successful respondent sought full indemnity costs exceeding $72,000, arguing that non‑parties resisting letters rogatory should be fully indemnified.

The court held that while full indemnity may be appropriate in some cases involving non‑party respondents, the scale and quantum of costs remain discretionary and must satisfy the overriding principle of reasonableness and proportionality under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The court found the hours and number of legal professionals involved excessive given the limited record and straightforward issues.

Costs were therefore fixed at a reduced all‑inclusive amount.

The applicants sought an order enforcing letters rogatory issued by a United States District Court to compel documentary and oral discovery from the respondent, an Ontario non-party, for use in US patent litigation.

The respondent opposed the application, arguing the request was overly broad and the evidence insufficient.

The Superior Court of Justice dismissed the application, finding the applicants failed to demonstrate that the requested evidence was relevant by Ontario standards, necessary for trial, not otherwise obtainable, identified with reasonable specificity, and not unduly burdensome.