It is not always reasonable to pursue all reasonable points

Today’s EWCA costs judgment in MMI Research Ltd v Cellxion Ltd & Ors [2012] EWCA Civ 139 raises an interesting point of principle, as the Court of Appeal declined to award costs to the defendants, which had ultimately prevailed on a question of obviousness, because they had raised so many issues on which they lost. Notwithstanding that the points raised may have been individually reasonable, the sheer number was not:

We think the defendants were indeed profligate in the number of points they took. A defendant cannot take as many "reasonable" points as it likes and not have to pay for any of them if they are unsuccessful. If he has a large number of potential such points he should make a judgment as to which are the better ones. A good test to apply is not merely "is this point a reasonable runner?" but also "which of my reasonable runners are the best few?" If only a few such points are run and all but one fails, the court may deprive the party of its costs of the unsuccessful points. But there comes a point when more sanction is called for. This is particularly important in a patent action where very often a host of possible defences could be run. A reasonably strict costs regime should make a defendant concentrate on his best – which may indeed also give him a better chance of winning.

The English and Canadian rules are different, and I am not an expert on either, but so far as I can tell, the Federal Courts Rules would permit a similar result, at least in principle. Has this question been raised in the Canadian Federal Courts?