Date: 20021203
Docket: A-483-01
(T-913-95)
Neutral citation: 2002 FCA 481
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
CANWELL ENVIRO-INDUSTRIES LTD.,
CLIVE TITLEY and THE CITY OF MEDICINE HAT
Appellants
(Defendants)
and
BAKER PETROLITE CORPORATION,
PETROLITE HOLDINGS INC. and
BAKER HUGHES CANADA COMPANY
Respondents
(Plaintiffs)
REASONS FOR ORDER
STRAYER J.A.
[1] On August 18, 2001, the Trial Division issued a judgment in this matter ordering, inter alia, the defendant City of Medicine Hat to pay the plaintiffs for its profits flowing from a patent infringement in the amount of $621,421.07 with both pre-judgment and post-judgment interest "calculated in a manner agreed upon between the parties". On October 15, 2001 Medicine Hat paid the plaintiffs $638,859.90 in satisfaction of the judgment including pre-judgment and post-judgment interest at 6.25%.
[2] On April 29, 2002, this Court set aside the decision of the Trial Judge on the basis that the patent claims in issue were invalid. The claim against the defendants was dismissed with costs here and in the Trial Division.
[3] On May 7, 2002, Medicine Hat demanded repayment of the amount paid to the plaintiffs ($638,859.90) plus interest from October 15, 2001 at 6.25% (the rate previously used to calculate the amount owing by Medicine Hat) which would amount to $109.39 per day. The plaintiffs paid Medicine Hat the sum of $638,000 (implicitly ignoring the repayment of the balance of $859.90 which the City had previously paid to them: only after this motion was brought did the plaintiffs pay the additional $859.90 still owing of the amount paid by the City). The plaintiffs also refused to pay any interest on the total sum of $638,859.90 of which it had the use from October 15, 2001 until sometime in May, 2002.
[4] The City of Medicine Hat brings this motion asking this Court to order payment of interest of $24,071.26 representing interest at 6.25% on the sum of $638,859 from October 15, 2001, the date the City paid this amount to the plaintiffs, and May 23, 2002, the date the City's counsel objected to the failure to pay interest (the sum of $638,000 having by then been received by the City). The City does not specify the juridical basis for such a claim. The judgment of this Court did not specifically deal with either repayment of amounts paid under the Trial Division judgment, nor with interest payable on such amounts. We simply stated that "the decision of the Trial Judge is set aside". The plaintiffs, respondents on the motion, object to it on the basis that this Court has no independent equitable jurisdiction to entertain a claim for unjust enrichment. They also argue in the alternative that we cannot vary the judgment under sub-rule 399(2) as this is not a "new matter". It should have been known by the City when it appealed the Trial Division judgment that it should ask for recovery of amounts it had paid under that judgment and interest thereon.
[5] The plaintiffs, motion respondents, have properly observed that if this is to be treated as an application to amend the judgment of this Court it should be considered by the same panel which heard the appeal. Accordingly the same panel joins in these reasons and order.
[6] I believe we should treat this as a motion under paragraph 399(2)(a) and sub-rule (3) which provide as follows:
| 399(2) On motion, the Court may set aside or vary an order that was made
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; . . . .
(3) Unless the Court orders otherwise, the setting aside or variance of an order under subsection (1) or (2) does not affect the validity or character of anything done or not done before the order was set aside or varied. |
|
399(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants :
a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue; . . . .
(3) Sauf ordonnance contraire de la Cour, l'annulation ou la modification d'une ordonnance en vertu des paragraphes (1) ou (2) ne porte pas atteinte à la validité ou à la nature des actes ou omissions antérieurs à cette annulation ou modification. |
|
|
|
|
It was the natural consequence of our judgment setting aside the trial judge's judgment that this removed any equitable claim which the plaintiffs had to the money paid to them. It was not unreasonable on the part of the defendants to assume that the plaintiffs would repay such money to the City together with the value of the money (i.e. interest) enjoyed by them during the period when they were not equitably entitled to it. The fact that they would object to payment of interest did not become apparent until well after disposition of the appeal.
[7] As it is fully consistent with our decision of April 29, 2002 setting aside the trial judgment that the parties should as far as possible be returned to the position they would have enjoyed had there been no such trial judgment, and as the plaintiffs' unwillingness to acknowledge this principle constitutes a new matter, this Court should order pre-judgment (i.e. prior to our judgment of April 29, 2002 going back to October 18, 2001), and post-judgment (subsequent to that judgment) interest up until the day of full payment of these interest charges, at rates for the relevant times calculated, as provided in sub-sections 36(1) and 37(1) of the Federal Court Act, on the basis of the law of Alberta, the province where the course of action arose vis à vis the City of Medicine Hat. The parties have not provided the Court with precise terms of that law.
[8] The moving party, the City of Medicine Hat, should have the costs of this motion hereby fixed at $1,000.00.
(s) "B.L. Strayer"
J.A.
I agree
"Marshall Rothstein"
I agree
"John M. Evans"
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Canwell Enviro-Industries Ltd., Clive Titley and the City of Medicine Hat v. Baker Petrolite Corporation, Petrolite Holdings Inc., and Baker Hughes Canada Company
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE STRAYER
CONCURRED IN BY: The Honourable Mr. Justice Rothstein
The Honourable Mr. Justice Evans
WRITTEN REPRESENTATIONS BY:
David A. Aitken/Jennifer A. Ross-Carrière FOR THE APPELLANTS
Anthony G. Creber/Patrick S. Smith FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Osler, Hoskin & Harcourt LLP
Ottawa, Ontario FOR THE APPELLANTS
Gowling Lafleur Henderson LLP
Ottawa, Ontario FOR THE RESPONDENTS