Executive Summary: Key Legal and Evidentiary Issues

• Allocation of party-and-party costs for an appeal and cross-appeal in a complex patent infringement matter, applying Column III of Tariff B under the Federal Courts Rules.
• Weight given to DeepRoot’s “largely successful” result on both the appeal and cross-appeal when choosing between midpoint and top-end tariff units for assessable legal services.
• Dispute over whether the complexity of the issues and volume of work justified costs at the top of Column III, versus GreenBlue’s position that only the midpoint should apply.
• Detailed item-by-item scrutiny of tariff services (appeal and cross-appeal notices, appeal books, memoranda, motions, hearing attendances, compendia, and joint books of authorities) to avoid double recovery and ensure proportionality.
• Treatment of disbursements, particularly rejection of law-firm overhead (special secretarial overtime and in-town meeting/lunch expenses) and partial allowance of large third-party printing and binding costs, including colour versus black-and-white copies.
• Final certification of total costs of $13,989.21 payable by GreenBlue Urban North America Inc. to DeepRoot Green Infrastructure, LLC and DeepRoot Canada Corp., confirming DeepRoot as the successful party in this costs assessment.

Background and procedural history

GreenBlue Urban North America Inc. (GreenBlue) and DeepRoot Green Infrastructure, LLC together with DeepRoot Canada Corp. (collectively, DeepRoot) were involved in a patent infringement dispute in the Federal Court, docket T-954-18. The underlying litigation concerned allegations of patent infringement, placing the case within the realm of intellectual property law, specifically patent law, and complex commercial litigation. After the Federal Court released its decision on the merits in July 2021, GreenBlue appealed and DeepRoot cross-appealed to the Federal Court of Appeal under Court of Appeal file A-181-21. Separately, DeepRoot also appealed an interlocutory contempt decision in a related Federal Court file (T-954-18) under Court of Appeal file A-116-22. That contempt appeal was heard in close sequence with the appeal and cross-appeal in A-181-21, but a separate costs track and decision applied to that file. In September 2023, the Federal Court of Appeal issued its Judgment and Reasons in A-181-21. The Court dismissed GreenBlue’s appeal, allowed DeepRoot’s cross-appeal, and remitted the question of whether an accounting of profits was an appropriate remedy back to the Federal Court for redetermination, with costs of the appeal and cross-appeal awarded to DeepRoot. On the same date, the Court dismissed DeepRoot’s contempt appeal in A-116-22 and awarded costs in that other file to GreenBlue. Those earlier appellate decisions set the stage for the present costs assessment.

Nature of the costs assessment

The February 12, 2026 decision by Assessment Officer Karine Turgeon is not about liability for patent infringement or the amount of damages or profits; instead, it focuses solely on the quantification and allocation of costs for the appeal and cross-appeal in file A-181-21. DeepRoot initiated the assessment by filing a bill of costs for the appeal and a separate bill of costs for the cross-appeal. The parties agreed that Column III of the table to Tariff B under the Federal Courts Rules applied, but they disagreed on the appropriate level within that column. DeepRoot argued that the result, complexity, and workload justified costs at the top of Column III across all items. GreenBlue conceded Column III but maintained that any allowed items should be confined to the midpoint, which is traditionally associated with average complexity. The assessment proceeded in writing without oral argument. Both parties filed written submissions, affidavits, and books of authorities. The Assessment Officer was required to apply the Federal Courts Rules, including subsection 400(3), which lists factors relevant to costs, Rule 407 and Tariff B for the applicable column and tariff ranges, and Rule 409, which empowers the assessment officer to use the subsection 400(3) factors when allocating units within the available ranges.

Key legal framework and factors considered

Costs were to be assessed on a party-and-party basis, not on a solicitor-and-client basis. This distinction is important: on a party-and-party basis, the tariff units provide only partial indemnity, and the actual fees paid by the client to its lawyers do not dictate the outcome. DeepRoot’s argument that the amount it had paid its counsel justified the very top of Column III was expressly rejected because the Court’s Judgment had granted costs on a party-and-party basis. The Assessment Officer therefore focused on the tariff structure and relevant case law, rather than on DeepRoot’s actual invoices. The Officer first identified which factors under subsection 400(3) were relevant. Three were central: the result of the proceeding, the complexity of the issues, and the amount of work done. The appellate Judgment had clearly stated that DeepRoot was largely successful on both the appeal and the cross-appeal. On that basis, the Officer would, where appropriate, weigh the result factor in favour of DeepRoot. Patent infringement litigation was also recognized as inherently complex, supporting a higher allocation within Column III for some items. At the same time, the Officer emphasized that each assessable service is discrete; the same level is not automatically used for every item in a bill of costs. The assessment therefore proceeded item-by-item, with close attention to the procedural history and the work actually performed.

Assessment of professional services under Tariff B

The Officer examined specific tariff items in each bill of costs. Under Item 17, covering the preparation, filing, and service of a notice of appeal, one unit was claimed for the notice of cross-appeal. Because a notice of cross-appeal had in fact been filed and Column III provides a single unit for this service, the Officer allowed that claim in full. Under Item 18, dealing with the preparation of appeal books, DeepRoot claimed one unit in each bill for separate appeal books filed in November 2021 and June 2022. The Court file confirmed that both sets had been filed, and Column III again provides one unit for this service, so these claims were also allowed as submitted. Under Item 19, which addresses memoranda of fact and law, DeepRoot claimed 7 units in each bill of costs for its memoranda filed for the appeal and the cross-appeal. Column III permits a range of 4 to 7 units. GreenBlue argued that, because Tariff B prohibits fractions of units, the Officer should effectively be limited to 5 or 6 units if applying a midpoint approach. The Officer, however, considered the overall result, the importance and complexity of the issues, and the amount of work required to prepare the memoranda. Those factors justified the top end of the range, and the 7 claimed units were allowed in both the appeal and cross-appeal bills. Under Item 21, relating to counsel’s fee on a motion, DeepRoot claimed units for preparing responding motion records for two separate interlocutory motions: one concerning the content of the appeal book, and another concerning a later motion to reconsider. In each case, prior court orders had awarded costs to DeepRoot and contained remarks that underlined the lack of merit in GreenBlue’s position or its inclusion of inappropriate materials. These contextual factors, combined with the work involved in responding, led the Officer to allow the 3 units claimed for each responding motion record.

Hearing costs, second counsel, and “other services”

The assessment of hearing-related costs focused on Item 22, the counsel fee on the hearing of the appeal. The appeal and cross-appeal were heard on May 10, 2023, with a related appeal in another file (A-116-22) proceeding the following day. The minutes of hearing showed that the appeal portion in A-181-21 and the cross-appeal portion were divided on the same day. DeepRoot claimed 5.25 hours of first counsel’s attendance for the appeal segment and 2.63 hours for the cross-appeal segment. Because this apportionment avoided double counting and was consistent with the record, the Officer accepted it. Three units per hour were claimed for first counsel, reflecting the top of Column III. Given DeepRoot’s strong success and the complexity and importance of the issues, the Officer allowed 3 units per hour. This produced 15.75 units for the appeal and 5.25 units for the cross-appeal under Item 22(a). For second counsel, DeepRoot sought additional costs under Item 22(b), which allows fees for second counsel “where Court directs.” The Court, however, had not expressly ordered costs for a second counsel in this case, even though the minutes showed that a second lawyer attended. Under existing case law and the plain wording of Tariff B, the Assessment Officer lacked jurisdiction to allow such units without an explicit direction from the Court. Consequently, the claimed units for second counsel in both bills were disallowed in full. Under Item 27, covering “such other services as may be allowed,” DeepRoot claimed units for the preparation of compendia and joint books of authorities in both the appeal and cross-appeal. Two different compendia and two joint books of authorities were prepared. The Officer accepted that multiple claims under Item 27 can be permitted provided there is no double indemnification and that the record showed DeepRoot’s genuine participation in creating these materials. At the same time, the Officer recognized that joint books of authorities are typically a collaborative product and that GreenBlue should not be overburdened. Balancing these considerations, the Officer reduced the requested units and allowed 2 units for each of the four Item 27 claims, for a total of 4 units per bill for compendia and joint books of authorities combined. Summing up the services items, the Officer allowed 33.75 units in the appeal bill and 18.25 units in the cross-appeal bill. Using the applicable tariff rate, these corresponded to $5,737.50 for the appeal and $3,102.50 for the cross-appeal in professional fees.

Taxes on professional services and their adjustment

Because not all claimed units were allowed, the Officer had to adjust the taxes accordingly. The governing principle is that HST is recoverable only on the allowed portion of assessable services and disbursements, not on amounts that were claimed but rejected. For the appeal bill of costs, the allowed 33.75 units, totalling $5,737.50 in fees, attracted HST of $745.88. For the cross-appeal bill, the allowed 18.25 units, totalling $3,102.50, attracted HST of $403.33. These adjusted HST figures were incorporated into the overall costs totals.

Disbursements: overhead, meals, and printing

The Officer then reviewed DeepRoot’s disbursement claims. These included printing and binding, special secretarial work, meeting or lunch expenses, and associated HST. Disbursements under Tariff B must satisfy three core requirements: they must be reasonable, they must have been necessary for the conduct of the proceeding, and it must be established by affidavit or solicitor evidence that they were made or are payable. For special secretarial work, DeepRoot claimed $210 per bill for overtime work performed by a legal administrative assistant at its law firm. The Officer concluded that such overtime constitutes law-firm overhead and is not a recoverable disbursement under Tariff B. That type of cost is understood to be built into the tariff-based compensation for professional services, not billed separately to the other side. Those claims, and the HST on them, were disallowed. For meeting expenses, DeepRoot claimed $180.85 in each bill for catered lunches ordered for two meetings attended by six to ten people in Toronto, including one on the hearing day. The Court file indicated that the hearing took place close to counsel’s office and that the lawyers and other attendees were not in travel status. Established case law provides that meal expenses are only recoverable in exceptional situations when counsel is travelling, or sometimes when witnesses are involved. No such circumstances were present here, and there were no witnesses at the appeal hearing. The Officer therefore found these lunch expenses and their HST neither necessary nor reasonable for the purposes of Tariff B and disallowed them in full. For printing and binding, DeepRoot claimed $4,168.79 plus HST in each bill, supported by a third-party invoice. The record showed that the hearing involved very large volumes of material—approximately ten thousand pages combining appeal books, compendia, and memoranda. GreenBlue challenged the reasonableness of the claimed totals and argued that any allowance should be capped at a much lower figure for the entire matter. The Officer acknowledged that extensive printing and binding would have been needed, especially given that DeepRoot needed to print a full copy of the large appeal record served electronically by GreenBlue. The total number of pages claimed was found broadly consistent with the documentation filed in the Court. However, a significant concern was that 80% of the third-party copies had been produced in colour, without specific justification. Colour printing is considerably more expensive than black-and-white and is not always necessary to understand the content. In the absence of evidence explaining why such a high proportion of colour printing was required, the Officer determined that it was reasonable to treat only about 5% of the copies as needing colour. Using this assumption, the Officer exercised discretion and reduced the amount recoverable under the printing and binding claim. For each bill of costs, the Officer allowed $1,769.91 in printing and binding charges plus $230.09 in HST, for a rounded total of $2,000 per bill. This approach recognized the genuine need for substantial printing while protecting GreenBlue from bearing the full cost of excessive or unnecessary colour copying.

Final amounts and successful party

After combining the allowed professional fees, adjusted HST, and permissible disbursements for each bill of costs, the Assessment Officer fixed the final totals. For the appeal in file A-181-21, DeepRoot’s bill of costs was assessed and allowed in the amount of $8,483.38, payable by GreenBlue Urban North America Inc. For the cross-appeal in the same file, DeepRoot’s bill of costs was assessed and allowed in the amount of $5,505.83, likewise payable by GreenBlue. The combined total for this costs assessment is therefore $13,989.21. The successful party in this costs decision is DeepRoot Green Infrastructure, LLC and DeepRoot Canada Corp., who receive this total costs award. GreenBlue Urban North America Inc. is the paying party. No damages or profits are quantified in this particular ruling; it addresses only the allocation and quantum of appellate costs. The accounting of profits issue and any underlying remedies remain matters for the Federal Court following the remittal ordered in the earlier appellate Judgment. In the result, a Certificate of Assessment issues confirming that a total of $13,989.21 in party-and-party costs is payable by GreenBlue Urban North America Inc. to DeepRoot Green Infrastructure, LLC and DeepRoot Canada Corp., reflecting DeepRoot’s status as the largely successful party in the appeal and cross-appeal before the Federal Court of Appeal.