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Federal Court - Interest. Patel v. Dermaspark Products Inc.
In Patel v. Dermaspark Products Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here where the lower court "decided that the appellants were liable, jointly and severally, in the amount of $45,000, representing statutory damages of $5,000 for copyright infringement, $20,000 for trademark infringement, passing off, depreciation of goodwill and unfair competition, and $20,000 for punitive damages".
Here the court considers the broad interest discretion embodied in the Federal Courts [FCA s.36(2,5)]:[51] As to the rate of interest, the respondent Pollogen is based in Israel and the respondent DermaSpark Products Inc. does business throughout Canada. The appellants are based in Ontario, although some of the infringing use of the respondents’ copyright and trademarks was in the advertising, promotion and sale of products online. It cannot be said that the causes of action in this case arise exclusively in Ontario. As a result, subsection 36(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 applies. Under subsection 36(2), "“[a] person who is entitled to an order for the payment of money in respect of a cause of action arising outside a province or in respect of causes of action arising in more than one province is entitled to claim and have included in the order an award of interest on the payment at any rate that the Federal Court of Appeal or the Federal Court considers reasonable in the circumstances”". Similarly, under subsection 36(5), the Federal Court can allow interest for periods other than those specified under subsection 36(2), based on "“any...relevant consideration”". On the rather unusual and extreme facts of this case, one that amply justifies an award of punitive damages, the Federal Court "“consider[ed] it reasonable in the circumstances”" based on "“relevant consideration[s]”" to make the interest award it did. I cannot say that that award is vitiated by palpable and overriding error. The award must stand.
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