Tariq Hussein Remtulla

Following a trial decision dismissing a claim for unpaid royalties under a patent licence agreement, the successful defendant sought partial indemnity costs exceeding $637,000.

The plaintiff accepted entitlement to costs but argued the claim was excessive relative to the scope of the litigation and its own costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher, the court assessed factors including the complexity of the dispute, the importance of the issues, the parties’ expectations, and the reasonableness of the hours and disbursements claimed.

The court found the defendant’s claimed hours were very high compared to the nature of the four‑day trial and reduced certain disbursements.

Costs were fixed at $300,000 for fees and $90,000 for disbursements, plus HST.

The plaintiff, owner of a US patent for an orthodontic bracket, sued the defendant for breach of a Licence Agreement, alleging the defendant failed to pay royalties on new bracket products.

The court applied US patent law to construe the patent claims and determine infringement.

The court found that the accused products did not infringe the patent because they lacked a slidable locking shutter that moved entirely by sliding motion.

As the products were not covered by the patent, they were not subject to the Licence Agreement, and the plaintiff's claims for royalties and aggravated damages were dismissed.

A patent licence dispute arose concerning whether certain orthodontic brackets sold by the defendant were covered by a U.S. patent licensed to the defendant under a royalty agreement.

The plaintiff alleged the products fell within several patent claims and sought unpaid royalties and aggravated damages.

The court conducted a claim construction analysis under U.S. patent law principles and compared the patent claims with the accused products.

It held that although some claim elements were present, the products did not include the required "slidable locking shutter" operating through a sliding motion between open and closed positions.

Because a required claim element was absent, the products did not infringe the patent and were not covered by the licence agreement.

The defendants sought costs on a partial indemnity scale following the dismissal of the plaintiff's motion for leave to appeal.

The plaintiff argued that he should be awarded costs or that no costs should be ordered.

The court found no reason to depart from the general rule that costs follow the event, noting that the plaintiff had initially sought the very adjournment that the motion judge ultimately granted.

Costs were awarded to the defendants in the amount of $6,122.73.

The plaintiff sought leave to appeal an order adjourning the defendants' summary judgment motion.

The motion judge had adjourned the summary judgment motion to allow for discoveries to be completed, as the defendants had not provided an evidentiary record to support their limitation period defence.

The plaintiff argued the motion should have been dismissed outright for failure to put their best foot forward.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's exercise of discretion to control the process.

The defendants brought a motion for summary judgment arguing that the plaintiff’s claim was barred by a limitation period.

The court held that the moving parties failed to provide a proper evidentiary record, relying largely on pleadings and correspondence and offering only a legal assistant as affiant.

Applying the principles in Combined Air Mechanical Services Inc. v. Flesch, the court found that a full appreciation of the issues requires substantive affidavit evidence and adequate disclosure, particularly where discoverability may be engaged.

Given the absence of documentary discovery and meaningful evidence from the defendants, the motion was premature.

The motion was adjourned to permit documentary and oral discoveries before the summary judgment motion proceeds.

The plaintiff sought leave to appeal an order dismissing a motion to stay the defendants' pre-discovery summary judgment motion.

The plaintiff argued the motion judge relied on a test that conflicted with other jurisprudence and that there was good reason to doubt the correctness of the decision.

The Divisional Court found no conflict in the case law, noting that different approaches to case management did not amount to conflicting legal tests.

The court also found no reason to doubt the correctness of the motion judge's decision, as the appropriateness of a summary judgment motion without discovery is case-specific.

Leave to appeal was denied.

The plaintiff sued the defendant for breach of contract and misrepresentation arising from a franchise agreement.

The defendant brought a motion for summary judgment dismissing the action as statute-barred.

Before discoveries took place, the plaintiff moved to strike the summary judgment motion on the grounds of prematurity.

The court dismissed the motion to strike, applying the test that such a motion should only be granted in the clearest of cases.

The court found that the summary judgment motion had a reasonable chance of success and the matter was not overly complicated.