Bauer Hockey Ltd. v. Sport Maska Inc. (CCM Hockey), 2020 FC 1123

Justice Grammond - 2020-12-04

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The defendant, CCM brings a motion for leave to file the supplemental report of its expert, Mr. Scott Davidson, in the trademark infringement trial that began yesterday. Even though it is brought at the very last minute, I am granting this motion, as the report will assist the Court in the resolution of the matter and admitting it will not cause significant prejudice to the plaintiff, Bauer. ... Both experts proceeded on the assumption that, in calculating CCM’s profits, only CCM’s incremental costs could be deducted. [3] This assumption, although widely shared, proved to be mistaken. On September 15, 2020, the Federal Court of Appeal issued its judgment in Nova Chemicals Corporation v Dow Chemicals Company, 2020 FCA 141 [Nova v Dow]. In that case, the Court offered a detailed analysis of the guiding principles that underlie the law regarding accounting of profits. More specifically, it held that “absent some exceptional or compelling circumstance or persuasive expert evidence to the contrary in a particular case, the full cost method is the appropriate approach to deducting costs in an accounting of profits” (at paragraph 164). Thus, not only incremental costs, but also fixed costs, are deductible. ... Thus, even if CCM should have brought this motion earlier, I am of the view that the other factors favour granting leave to file Mr. Davidson’s supplemental report.

Decision relates to:



Canadian Intellectual Property