Trevor McDonald

Following an injunction motion where Exaltexx was predominantly successful, Exaltexx sought a lump sum costs award payable forthwith.

Fluid argued for no costs due to divided success.

The Court ordered costs of $25,848.04 (calculated as 25% of incurred fees plus disbursements) payable by Fluid in any event of the cause, but not forthwith.

The plaintiff appealed a Prothonotary's decision dismissing its motion to remove "Confidential Information - Counsels Eyes Only" designations from documents produced by the defendants in a patent infringement action.

The Federal Court allowed the appeal in part, finding the Prothonotary erred in law by treating the motion as one to vary a protective order and by applying the wrong legal test for removing the designation.

However, applying the correct test, the Court found the defendants established the documents were confidential and that their proprietary interests could reasonably be harmed by disclosure.

The motion to remove the designation was dismissed.