T-167-80
Baxter Travenol Laboratories of Canada, Limited;
Travenol Laboratories, Inc. and Baxter Travenol
Laboratories, Inc. (Plaintiffs)
v.
Cutter (Canada), Ltd. (Defendant)
Trial Division, Dubé J.—Ottawa, October 15, 16,
17 and 26, 1984.
Practice — Contempt of court — December 11, 1980 judg
ment declaring plaintiffs' patent infringed, enjoining defendant
from manufacturing or selling blood bags, and ordering
defendant to destroy or deliver up infringing goods — Formal
judgment entered December 18, 1980 — Defendant selling
inventory in meantime — Trial Division and Court of Appeal
holding defendant not in breach of judgment — Supreme
Court of Canada holding acts, while not breaches of injunc
tion, possibly constituting contempt — Matter referred back to
Court to decide whether knowledge of prohibition in December
11 judgment and whether contravention of judgment — Mens
rea not required to establish contempt — Consideration of
good faith not part of mandate granted by Supreme Court of
Canada — Corporation liable for servant who contravenes
court order in course of duty — Defendant guilty of contempt
— Fine imposed and costs — Federal Court Rules, C.R.C., c.
663, RR. 337(2), 355(2).
Practice — Costs — Contempt of court — No financial gain
for plaintiffs — Proceedings necessary to maintain orderly
administration of justice — Costs awarded on solicitor-and-
client basis.
An order was issued against the defendant to show cause why
it should not be condemned for contempt of court. Written
reasons for judgment, declaring that the plaintiffs' patent had
been infringed, were delivered on December 11, 1980. The
defendant was enjoined from manufacturing, selling or dis
tributing multiple blood bag sets, and was ordered to destroy or
deliver up all infringing goods. The formal judgment was
settled and entered on December 18, 1980. Between December
11 and 18, the defendant disposed of the goods by sale and
otherwise. At an earlier show cause hearing, it was held on a
preliminary objection in the Trial Division and later in the
Court of Appeal that the defendant was not in breach of the
judgment, which had not been pronounced until December 18.
On appeal, the Supreme Court of Canada agreed that, while
the acts complained of would not be breaches of the injunction,
they might still constitute contempt of the judgment. The
appeal was allowed and the matter referred back to this Court
on the merits. Upon a motion for directions it was held that the
matters to be proven were 1) that the defendant knew of the
prohibitions in the December 11 judgment and 2) that there
was a contravention of a prohibition therein.
Held, the defendant is guilty of contempt of court and liable
to a fine of $100,000, plus party-and-party costs and the
plaintiffs' costs on a solicitor-and-client basis.
The evidence established beyond a reasonable doubt that the
defendant knew of the existence of the prohibitions in the
December 11 reasons for judgment, and that the defendant
contravened the prohibitions by failing to destroy or deliver up
the goods.
The defendant argued that, as its solicitor did not possess a
"guilty mind", it should not be found guilty of contempt. The
defendant relied on Koffler Stores Ltd. v. Turner, [1971] F.C.
145; 2 C.P.R. (2d) 221 (T.D.), where the Judge would not
"punish the defendants for having, in good faith, given a
possibly wrong but not unreasonable interpretation to an order
of this Court." Borrie and Lowe's Law of Contempt indicates,
however, "that it is not necessary to show that the defendant
... intends to interfere with the administration of justice."
Under the mandate granted by the Supreme Court of
Canada, neither the good faith of the defendant nor its error in
law are factors to be considered. The Supreme Court was
aware of the defendant's legal position on contraventions of the
December 11 judgment, but did not include that factor in its
directions to this Court.
The defendant argues that it should not be found guilty
because of the errors of its legal agents since agency is a civil
concept and these proceedings are quasi-criminal at least. In
matters of civil contempt, the liability of a corporate body is
dependent on the vicarious liability principle. A corporation is
liable for its servants when they, in the course of duty contra
vene an order of the Court. It is no defence for a company to
show that its officers were unaware of the terms of the order or
that they failed to realize that they were in breach of the order.
Rule 355(2) provides that the penalty for contempt of court
is a fine or imprisonment. There has been interference with the
orderly administration of justice. There is considerable public
interest in maintaining the authority of justice so the penalty
must be severe enough to suit the gravity of the contraventions.
A fine of ten per cent of the value of the goods not delivered up
would be appropriate to indicate the severity of the law, and yet
be sufficiently moderate to show the temperance of justice.
The plaintiffs are entitled to costs on a solicitor-and-client
basis. They should not have to bear any of the costs of these
proceedings which were necessary to maintain the orderly
administration of justice, but will bring them no personal
benefit.
CASES JUDICIALLY CONSIDERED
APPLIED:
Knight v. Clifton, [1971] Ch. 700; [1971] 2 All ER 378
(C.A.); Stancomb v. Trowbridge Urban Council, [1910]
2 Ch. 190; Re Mileage Conference Group of the Tyre
Manufacturers' Conference, Ltd.'s, Agreement, [1966] 2
All E.R. 849 (R.P.C.).
CONSIDERED:
Koffler Stores Ltd. v. Turner, [1971] F.C. 145; 2 C.P.R.
(2d) 221 (T.D.).
REFERRED TO:
Giles (C H) & Co Ltd v Morris, [1972] 1 All ER 960
(Ch. D.); In Re Rossminster Ltd and Tucker (1980)
Times, 23 May; Canada Metal Co. Ltd. et al. v. Canadi-
an Broadcasting Corp. et al. (No 2) (1974), 48 D.L.R.
(3d) 641 (Ont. H.C.); (1975), 65 D.L.R. (3d) 231 (Ont.
C.A.); Re Gaglardi (1960), 27 D.L.R. (2d) 281
(B.C.C.A.); Heaton Transport (St. Helens) Ltd. v.
Transport and General Workers' Union, [1973] A.C. 15;
[ 1972] 2 All ER 1214 (H.L.); Z Ltd. v. A-Z and AA-LL,
[1982] Q.B. 558; [1982] 1 All ER 556 (C.A.); In Re
Garage Equipment Association's Agreement (1964), 4
R.P. 491 (R.P.C.); Re Galvanized Tank Manufacturers'
Association's Agreement, [1965] 2 All E.R. 1003
(R.P.C.).
COUNSEL:
Alan J. Lenczner, Q.C. and Colleen E. R.
Spring for plaintiffs.
Gordon F. Henderson, Q.C. and George Fisk
for defendant.
SOLICITORS:
McCarthy & McCarthy, Toronto, for plain
tiffs.
Gowling & Henderson, Ottawa, for defen
dant.
The following are the reasons for judgment
rendered in English by
DUBÉ J.: The defendant appeared before the
Court in Ottawa on October 15, 16 and 17, 1984
pursuant to two orders to show cause why it should
not be condemned for contempt of court for having
acted in such a way as to interfere with the orderly
administration of justice or to impair the authority
or the dignity of the Court with reference to
reasons for judgment released by Gibson J. on
December 11, 1980 [(1980), 52 C.P.R. (2d) 163
(F.C.T.D.)] (followed by an injunction order
released on December 18, 1980).
The first order to show cause was granted by me
on January 12, 1981. The second one, much more
recent, was issued by my colleague Strayer J. on
July 16, 1984. Both orders have travelled their
separate ways on tortuous procedural paths which
led them to this contempt hearing. A general
overview of the factual situation and a brief out
line of the previous proceedings are necessary for
the full comprehension of these reasons for
judgment.
1. The history of the case.
A trial of the patent infringement case involving
the plaintiffs ("Baxter") and the defendant ("Cut-
ter") was heard by Gibson J. in November 1980.
He delivered his written reasons for judgment on
December 11, 1980 wherein the patent was
declared to be valid and to have been infringed. At
the end of his reasons for judgment [at page 172],
Gibson J. held that "Baxter is entitled to judgment
against Cutter, declaring, ordering and adjudging
as follows". There followed seven specific para
graphs which inter alia enjoined Cutter from
"manufacturing, offering for sale, selling or dis
tributing multiple blood-bag sets" and ordering
Cutter "to destroy ... or deliver up" to the plain
tiffs all infringing goods in its "possession, custody
or control". In his last paragraph, Gibson J. asked
counsel to "prepare in both official languages an
appropriate judgment to implement the foregoing
conclusions and may move for judgment in accord
ance with Rule 337(2)(b)". The formal judgment
was settled and entered on December 18, 1980.
What is alleged to have happened during that
period between December 11 and December 18,
1980 is the subject-matter of the two show cause
orders and of this hearing.
On January 12, 1981 Baxter obtained from me
an ex parte order against Cutter to show cause
why it should not be condemned for contempt of
court for having breached the injunction pro
nounced on December 11, 1980 by having sold the
impinged blood bags and having failed to destroy
them forthwith or to deliver them up to the plain
tiffs. On February 3, 1981, Cattanach J. held, on a
preliminary objection by Cutter, that the acts com
plained of could not be in breach of the judgment
of Gibson J. which had not been pronounced on
December 11, but only on December 18, 1980.
The Federal Court of Appeal affirmed that
judgment.
That decision was appealed to the Supreme
Court of Canada. In its judgment, dated Novem-
ber 3, 1983 [[1983] 2 S.C.R. 388], the Supreme
Court agreed that while the acts complained of
would not be breaches of the injunction granted by
Gibson J. they might still constitute contempt of
his judgment. The appeal was allowed and the
matter was referred back to this Court for a
decision on the merits.
Meanwhile, or on July 16, 1984 Baxter obtained
an ex parte order to show cause from Strayer J.
The purpose of the second show cause order was to
clarify the foundation upon which evidence would
be adduced in the hearing of the first show cause
order. Cutter appealed from that order. The Fed
eral Court of Appeal dismissed the appeal on
October 12, 1984 and the second show cause was
set to be heard on October 15, 1984 along with the
first one.
2. The matters to be proven.
I now return to the judgment of the Supreme
Court of Canada to seek guidance for my
appreciation of this matter. Dickson J. (as he then
was), speaking on behalf of the Court, agreed with
Cutter that there could be no breach of the injunc
tion prior to December 18, 1980, the date on which
Gibson J.'s judgment took effect under Federal
Court Rule 337 [Federal Court Rules, C.R.C., c.
663]. But he also said (at page 396 S.C.R.; page 7
C.P.R.) that "Contempt in relation to injunctions
has always been broader than actual breaches of
injunctions". In the instant case, he found that the
actions of Cutter, although technically not a
' Baxter Travenol Laboratories of Canada Ltd. et al. v.
Cutter (Canada), Ltd., [1983] 2 S.C.R. 388; 75 C.P.R. (2d) 1.
breach of an injunction, could still constitute con
tempt because they may "tend to obstruct the
course of justice". He concluded as follows at page
398 S.C.R.; pages 8-9 C.P.R.:
I therefore conclude, as a matter of law, there could be
contempt between December 11 and December 18, 1980 by
reason of an interference with the orderly administration of
justice and an impairment of the order or dignity of the Court
(Rule 355). It would be covered by paragraph (b) of the show
cause order. Since this question arose as a preliminary objec
tion, there has never been a finding of fact that Cutter and/or
Maxwell, with knowledge of their existence, did contravene the
prohibitions contained in Gibson J.'s December 11 reasons for
decision. Such a determination cannot be made in this Court; it
would require a reconvened hearing before the Federal Court,
Trial Division.
Paragraph (b) of my show cause order referred
to by Dickson J. [at page 392 S.C.R.; at page 4
C.P.R.] reads as follows:
(b) Acting in such a way as to interfere with the orderly
administration of justice or to impair the authority or
dignity of the Court by entering, after the commencement
of trial herein, into an arrangement out of the ordinary
course of trade, whereby multiple blood bag sets having
valves as exemplified by those of Exhibits P-8 and P-8A to
this trial, were transferred to the Canadian Red Cross and
contrary to representations made to counsel for the plain
tiffs as officers of the Court at the commencement of trial
herein, and designed to defeat and subvert the Court's
process herein and to render nugatory any injunction or
order to be delivered by the Court.
After the decision of the Supreme Court of
Canada was rendered, Cutter applied for an order
quashing the show cause order and, in the alterna
tive, for directions as to the charge under which
the defendant is required to show cause. Cattanach
J., who heard that motion, denied the first branch
of the application but did grant directions. The
learned Judge said at page 6 "that the matters
which must be proven" are:
I) that Cutter and Maxwell had knowledge of the prohibitions
in Mr. Justice Gibson's Reasons for Judgment dated December
11, 1980,
2) that there was a contravention of a prohibition therein.
The two show cause orders include the name of
Thomas Maxwell in his personal capacity as well
as in the capacity of Chief Executive Officer of the
defendant. It was agreed between the parties,
shortly after the commencement of the hearing,
that the charge as against Mr. Maxwell ought to
be dropped so as to allow him to give evidence
without incriminating himself. The Court agreed
and Thomas Maxwell was called by Baxter as its
first witness.
3. Knowledge of the prohibitions.
The evidence at the hearing reveals quite clearly
that Cutter, through its lawyers and executive
officers, had immediate knowledge of the existence
of the reasons for judgment of Gibson J. Mr.
James D. Kokonis of the Ottawa legal firm of
Smart & Biggar, representing Cutter throughout
in this matter, was called on behalf of Cutter. He
testified that he had read Gibson J.'s reasons upon
their release and that he telephoned Cutter Lab.
Inc. of Berkeley, California, the American parent
company (which had retained his firm in the first
place), and informed its in-house solicitor, himself
a patent attorney, and apprised him of all the
material points of the judgment. Mr. Kokonis
advised the American company to dispose of all
the infringing goods in the possession of Cutter in
Canada, as an injunction would issue on December
18, 1980.
Mr. Kokonis also communicated with Thomas
Maxwell, informed him of the outcome of the case
and told him he had very few days in which to
divest himself of the infringing blood bags. Mr.
Kokonis also discussed the matter with his associ
ate, Nicholas H. Fyfe, and asked him to insist that
Maxwell obtain a legal opinion from an Alberta
lawyer so as to obtain the proper documents to
effect legal delivery of the blood bags. The head
office of Cutter is in Calgary, Alberta.
Mr. Kokonis does not consider that he was
interfering with the dignity of the Court. It is his
view that Gibson J. had deliberately left "a
window open" so as to allow the defendant to
dispose of the offending goods before the issuance
of the formal order. Mr. Kokonis is an experienced
patent attorney having been President of the
Patent Institute of Canada and having practised at
the patent bar before the Exchequer Court and the
Federal Court of Canada for the past twenty
years.
Under severe cross-examination by Baxter's
counsel, Mr. Kokonis maintained his position that
under Rule 337 of the Federal Court, reasons for
judgment do not constitute a formal judgment and
have no effect until the formal judgment is pro
nounced. He therefore felt he was legally right in
advising his client to clear its warehouses of all the
offending goods before December 18, 1980.
In support of his position he refers to the deci
sion of Cattanach J. and of the three Judges of the
Federal Court of Appeal who all held that the
issuance of reasons for judgment does not consti
tute a formal injunction.
Thomas Maxwell never did read the reasons for
judgment but admits that Mr. Kokonis called him
about December 11, 1980 to inform him that the
trial had not been successful and to advise him to
remove the inventory as quickly as possible. And
four to five days before December 18, 1980 Mr.
Fyfe told him to move the offending inventory out
before December 18, 1980. Thomas Maxwell was
aware, of course, of the ongoing litigations and
that Baxter was looking for an injunction.
4. Contraventions of the prohibitions.
The evidence, documentary as well as oral, dis
closes that Cutter did not destroy the blood bags
and did not deliver them up to the plaintiffs, but
proceeded very quickly and very efficiently to dis
pose of them between December 11 and December
18, 1980.
Exhibits P-lA, P-3, P-6A, P-7A, P-8A and P-9
are Cutter invoices, with supporting documents,
showing that orders were received from the
Canadian Red Cross for the infringing blood bags
and filled and invoiced by Cutter during the rele
vant period. The amounts involved total about
$150,000. As indicated in the invoice, the usual net
terms are thirty days, but the following terms were
typed in on those particular invoices: "Payment
may be deferred until April 1st, 1981".
Exhibits P-4A and P-5A are invoices showing
total amounts of $8,121.60 and $27,764.64 respec
tively. Those invoices follow orders made by the
Red Cross in October, but were only filled on
December 12 and invoiced on December 16, 1980.
On all the invoices there is a notice to the effect
that "title to merchandise listed hereon shall pass
to buyer at time of delivery at point of destina
tion". Some of the above shipments were for deliv
ery to Western Canadian Centers but some were
for the Red Cross central warehouse in Toronto.
U.S. custom form 7512 titled "Transportation
Entry and Manifest of Goods Subject to Customs
Inspection and Permit" shows that the goods
transported by Canadian Freightways Ltd. in bond
via Consolidated Freightways Corporation entered
the Port of Sweetgrass, Montana, on December
17, 1980 with a destination to Ogden, Utah.
The evidence of Donald James Chapman, termi
nal operator of Canadian Freightways, is to the
effect that it takes three days to ship goods from
Sweetgrass to Ogden. Those invoices also carried a
notice that title passes at delivery. He identified
the exhibits as documents used in connection with
the shipments, as having been prepared in the
normal course of his company's business, and as
coming from his company's files.
Exhibits P-12A, P-13A, P-14A are Cutter
invoices dated during the same period for blood
bags sold to "Cutter Labs, Guilford, Surrey, Eng-
land", but shipped to "Cutter Labs Inc., Ogden,
Utah, U.S.A.". Exhibit P-15, dated December 15,
1980, indicates that the goods are sold to Cutter
Labs Inc., Emeryville, California, to be shipped to
Cutter Labs Ogden, Utah. This P-15 invoice refers
to the others aforementioned as "originally
invoiced to Cutter England".
Exhibits P-40, P-41, P-42 and P-43 are invoices
showing that Cutter made four shipments on
December 15, 1980 to the warehouse of the parent
company at Ogden, Utah. The value of those
shipments totals $774,000. The following notice
appears on the invoices:
FOR INTERCOMPANY STORAGE IN USA ONLY
NOT FOR SALE
NO CHG TO CUSTOMER
TO BE RETURNED TO CANADA
Mr. Ian James Winslow, Manager for the
Canadian Red Cross, Central Services, Toronto,
was subpoenaed by Baxter. He testified that up to
December 1980 Cutter had only supplied the Red
Cross needs for Western Canada. These shipments
received in Toronto in December 1980 were for
reshipment back to Red Cross centers in Western
Canada. Normally the Toronto head office main
tains a sixty to ninety-day supply of blood bags. In
December 1980, as a result of the unusual arrivals
from Cutter, the Red Cross had to rent space for
the overflow of bags at another warehouse, oper
ated by Central Warehousing (1968).
5. Findings of fact.
The evidence is overwhelming. I am convinced
beyond a reasonable doubt, firstly that the defend
ant knew of the existence of the prohibitions con
tained in the reasons for judgment of Gibson J.,
and, secondly, that the defendant contravened the
prohibitions by failing to destroy the goods, or
delivering up the goods to the plaintiff, and most
specially by disposing of the goods by sale and
otherwise during the relevant period. That ought
to settle the issues referred to this Court by the
Supreme Court of Canada. However, serious
points of law were raised and they deserve
consideration.
6. Is mens rea required?
Mr. Kokonis obviously believed that he was
legally right. He therefore did not possess the
ingredient of a "guilty mind" necessary to commit
a crime and, in consequence, his principal (the
defendant) argues that it ought not to be found
guilty of contempt.
The defendant relies in particular on Koffler
Stores Ltd. v. Turner 2 wherein Pratte J. (then of
the Trial Division) would not "punish the defend
ants for having, in good faith, given a possibly
wrong but not unreasonable interpretation to an
order of this Court". The order was an injunction
restraining the defendant from infringing the
plaintiff's trade mark.
As to the conduct of this defendant in the
instant case, Cattanach J. had this to say in his
February 3, 1981 judgment (at page 9):
I expressed the view at the hearing, and to which view I
adhere, that the conduct of the defendant through its chief
executive officer, has the stench of sharp and perhaps even
misleading practice and that the defendant and its chief execu
tive officer were devoid of standards of ethics but that in all
likelihood such ethics are neither expected or required in the
jungle of the business world and the rewards may be greater to
those vested with inherent predatory cunning.
Borrie and Lowe's Law of Contempt, 2nd ed.,
considers the requirement for mens rea in chapter
13, titled Civil Contempt. The answer is clearly
"that it is not necessary to show that the defendant
is intentionally contumacious or that he intends to
interfere with the administration of justice". The
authors, at page 400, quote Sachs L.J. in Knight v.
Clifton' as follows:
... when an injunction prohibits an act, that prohibition is
absolute and is not to be related to intent unless otherwise
stated on the face of the order.
The authors quote Warrington J. in Stancomb v.
2 [1971] F.C. 145, at p. 148; 2 C.P.R. (2d) 221 (T.D.), at p.
223.
3 [1971] Ch. 700, at p. 721; [1971] 2 All ER 378 (C.A.), at
p. 393.
Trowbridge Urban Council 4 who said that if a
person "in fact does the act, and it is no answer to
say that the act was not contumacious .... " In Re
Agreement of Mileage,' contempt was held to
have been established even though the acts were
done "reasonably and despite all due care and
attention, in the belief based on legal advice, that
they were not breaches."
Finally, the mandate of the Supreme Court of
Canada to this Court is crystal clear: two matters
only are to be established: firstly, was there a
knowledge of Gibson J.'s reasons for judgment
and, secondly, was there a contravention of that
judgment. Neither the good faith of the defendant
nor its error in law are factors to be considered.
The Supreme Court, of course, was fully aware of
the defendant's legal position on contraventions of
Gibson J.'s reasons for judgment and yet did not
include that factor in its directions to this Court.
7. Agency and contempt.
The defendant alleges that agency is a civil
concept which does not operate in criminal pro
ceedings: contempt proceedings being criminal, or
at least quasi-criminal, in nature, the defendant
ought not to be found guilty because of the errors
(denied) of its legal agents. Since Mr. Maxwell is
the directing mind of the defendant, the onus is on
the other side to show knowledge and bad faith on
his part.
[1910] 2 Ch. 190, at p. 194, cited with approval by Lord
Wilberforce in Heaton Transport ibid., at p. 109.
5 Re Mileage Conference Group of the Tyre Manufacturers'
Conference, Ltd., Agreement's [1966] 2 All E.R. 849 (R.P.C.),
at p. 862, cited with approval in Giles (C H) & Co Ltd y
Morris, [1972] 1 All ER 960 (Ch. D.), at p. 970, per Megarry
J. and in In Re Rossminster Ltd and Tucker, The London
Times, May 23, 1980, p. 10. In Canada see Canada Metal Co.
Ltd. et al. v. Canadian Broadcasting Corp. et al. (No 2) (1974),
48 D.L.R. (3d) 641 (Ont. H.C.), at p. 661, not overruled on
this point (1975), 65 D.L.R. (3d) 231 (Ont. C.A.). See also Re
Gaglardi (1960), 27 D.L.R. (2d) 281 (B.C.C.A.).
I cannot accept that argument. In matters of
civil contempt the liability of a corporate body is
dependent on the vicarious liability principle. 6 A
corporation is liable for its servants when they, in
the course of duty, contravene an order of the
court. It has been held that it is no defence for a
company to show that its officers were unaware of
the terms of a court order, or that they failed to
realize that they were in breach of the order.'
8. Admissibility of evidence.
Several objections were raised by counsel for the
defendant as to the admissibility of the evidence
adduced at other stages of this case, such as
affidavits, transcripts of cross-examinations, dis
coveries, etc. The rules against hearsay and self-
incrimination were canvassed. The Charter of
Rights [Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
was invoked. It was agreed that I would rule on
those objections later, if required. It is not now
necessary to make those rulings as my findings are
based exclusively on the oral evidence and the
exhibits tendered at the hearing before me.
9. The penalty.
Under Rule 355(2) anyone who is guilty of
contempt of court is liable to a fine (which in the
case of an individual shall not exceed $5,000) or to
imprisonment for a period not exceeding one year.
Under the circumstances of this case, I do not
believe it would be fitting to apply the full rigours
of the law and to impose imprisonment. However,
6 See Heaton Transport (St. Helens) Ltd. v. Transport and
General Workers' Union, [1973] A.C. 15; [1972] 2 All ER
1214 (H.L.); Z Ltd. v. A-Z and AA-LL, [1982] Q.B. 558, at p.
581; [1982] 1 All ER 556 (C.A.), at p. 569, per Eveleigh L.J.
and Miller Contempt of Court, p. 251, as reported in Law of
Contempt (supra).
In Re Garage Equipment Association's Agreement
(1964), 4 R.P. 491 (R.P.C.), at p. 505 and Re Galvanized
Tank Manufacturers' Association's Agreement, [1965] 2 All
E.R. 1003 (R.P.C.), at p. 1009, per Megaw P.
there has been, in my view, interference with the
orderly administration of justice and an impair
ment of the order or dignity of the Court. There is
obviously considerable public interest in maintain
ing the authority of justice in this country, so the
penalty must be severe enough to suit the gravity
of the contraventions.
The defendant has failed to deliver up to the
plaintiffs, or to destroy, infringing goods of the
value of about $1 million. A fine of ten per cent of
that amount would appear to me to be appropriate
to indicate the severity of the law and yet suf
ficiently moderate to show the temperance of
justice.
10. Costs.
The plaintiffs asked that they be given their
costs on a solicitor-and-client basis as they had no
possible financial gains in these contempt proceed
ings. They had made the same request before the
Supreme Court and Dickson J. held that it would
not be a proper case for such an order at that
stage. It is now appropriate at the present stage, in
my view, to grant such costs to the plaintiffs. After
all, they should not have to bear any of the costs of
these proceedings which were necessary to main
tain the orderly administration of justice but will
bring them no personal benefit.
For all those reasons, the defendant is liable to a
fine of $100,000 plus party-and-party costs and
the plaintiffs' costs on a solicitor-and-client basis.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.