CANADA Law and Practice Contributed by: Casey Chisick, Steven Kennedy, Karen MacDonald, Jessica Zagar, Dian Howard and Steven Henderson, Cassels Brock & Blackwell LLP
infringed) or non-commercial purposes (CAD100 to CAD5,000 for all works at issue in the pro - ceeding), with the award itself varying depending on various factors. There are no statutory damages available in trade mark matters. However, in matters involv - ing counterfeit goods, the courts have followed a precedent of nominal damages depending on the nature of the activity. Punitive and exemplary damages may also be awarded in both copyright and trade mark cases. 10.3 Attorneys’ Fees and Costs In Canada, a successful litigant is usually enti - tled to an award of costs. The amount awarded, however, is entirely within the discretion of the court. In the Federal Court, the amount of costs award - ed is presumptively calculated based on a tariff, which generally results in a very modest award. In more complex cases, the Federal Court has begun to award lump sum costs, which can range closer to 25–50% of a party’s legal fees. In exceptional cases, the court may award elevated (solicitor-client or full indemnity) costs. 10.4 Ex Parte Relief Ex parte relief is available only in limited, excep - tional circumstances. If granted, ex parte relief typically applies only for a short time and will be subject to review with the opposing party’s participation. 10.5 Customs Seizures of Counterfeits or Parallel Imports An owner of registered trade marks and reg - istered or unregistered copyrights can file a Request for Assistance with Canadian Border Services Agency (CBSA) to prevent the impor -
tation of counterfeit and pirated goods, and the CBSA can detain goods that it suspects to be counterfeit or pirated under such provisions. The Request for Assistance must be renewed every two years. CBSA detention of parallel imports is not avail - able.
11. Appeal 11.1 Appellate Procedure
Final decisions in trade mark and copyright cases can be appealed. Federal Court decisions may be appealed as of right to the Federal Court of Appeal. Provincial superior court decisions may be appealed to the appeal courts of that province. Further appeals to the Supreme Court of Canada are available but require leave, which is only granted in a small minority of cases. There are no special appellate procedures for copyright or trade mark proceedings, and the usual Canadian appellate standard of review will apply. This means that questions of law (where extricable) are reviewed on a correctness stand - ard, while questions of fact, and of mixed fact and law, are reviewed on a standard of palpable and overriding error. 11.2 Timeframes for Appealing Trial Court Decisions In the Federal Court, an appeal in the case of an interlocutory order must be brought within ten days after the pronouncement of the judg - ment, in the case of an interlocutory order, and within 30 days for all other matters. Once the appeal has been heard, it usually takes three to six months for the court to render a decision.
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