SCOTT PAPER LTD. Applicant v. GEORGIA-PACIFIC CONSUMER, 2011 FC 568
Opinion
Date: 20110517 Docket: T-9-09 Citation: 2011 FC 568 BETWEEN: SCOTT PAPER LTD. Applicant and GEORGIA-PACIFIC CONSUMER PRODUCTS LP Respondent REASONS FOR ORDER WITH RESPECT TO AWARD OF COSTS AGAINST SUCCESSFUL PARTY OKEEFE J. [ 1 ] At the conclusion of the hearing of this matter, I gave the parties timelines in which to make submissions on whether the applicants filing of the Rogers affidavit before me should attract an order of costs against it as the affidavit could have been filed before the Registrar.
This was the only costs issue on which I sought submissions. [ 2 ] Submissions were filed by the parties. [ 3 ] I have reviewed the submissions of both parties in relation to this issue and I am of the view that costs should not be awarded against the applicant as a result of filing the Rogers affidavit. I did not allow the appeal because of the material contained in the Rogers affidavit. I note from my decision that I concluded that Georgia-Pacific had failed to discharge its evidentiary burden with respect to the respondents marks reputation (non-distinctiveness).
As well, I note that there was no cross-examination on the affidavit and no evidence in response was filed so as to incur additional costs. [ 4 ] I agree with the applicant that only the cost consequences of the affidavit were to be the subject of the submissions. However, the applicants letter of May 7, 2010 includes further submissions on costs. Based on this fact, I believe it would be fair to give the respondent an opportunity to make submissions on costs and the applicant an opportunity to reply.
[ 5 ] The respondent shall have one week to file its submissions and the applicant shall have one week in which to reply. John A. OKeefe Judge Ottawa , Ontario May 17, 2011 FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-9-09 STYLE OF CAUSE: SCOTT PAPER LTD. - and - GEORGIA-PACIFIC CONSUMER PRODUCTS LP SUBMISSIONS IN WRITING AND CONSIDERED AT OTTAWA , ONTARIO REASONS FOR ORDER: OKEEFE J. DATED: May 17, 2011 APPEARANCES :
Kevin Sartorio FOR THE APPLICANT Matthew J. Diskin FOR THE RESPONDENT SOLICITORS OF RECORD : Gowling Lafleur Henderson LLP Toronto, Ontario FOR THE APPLICANT Heenan Blaikie LLP Toronto, Ontario FOR THE RESPONDENT
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