Date: 20000104
Docket: T-64-95
IN THE MATTER OF the Trade-marks Act (R.S.C. 1985, c. T-13)
- and-
IN THE MATTER OF trade-mark registration no.
TMA 249,436 for the trade-mark SHILING OIL
BETWEEN:
LING CHI MEDICINE CO. (H.K.) LTD.
Applicant
- and -
MOHAN PERSAUD, LATCHANDAI PERSAUD and
1013579 ONTARIO INC. dba
UNIVERSAL FOODS AND MERCHANDISE CO.
Respondents
Docket: A-172-97
IN THE MATTER OF the Trade-marks Act (R.S.C. 1985, c. T-13)
- and-
IN THE MATTER OF trade-mark registration no.
TMA 249,436 for the trade-mark SHILING OIL
BETWEEN:
LING CHI MEDICINE CO. (H.K.) LTD.
Appellant
(Applicant)
- and -
MOHAN PERSAUD, LATCHANDAI PERSAUD and
1013579 ONTARIO INC. dba
UNIVERSAL FOODS AND MERCHANDISE CO.
Respondents
(Respondents)
ASSESSMENT OF COSTS - REASONS
G.M. Smith,
Assessment Officer
[1] This is an assessment of the Bill of Costs filed on September 2, 1999 by the Appellant/Applicant, Ling Chi Medicine Co. (H.K.) Ltd.
[2] The Originating Motion which commenced this proceeding in the Trial Division was filed on January 12, 1995. It sought the expungement of the respondents' registration of the trade-mark SHILING OIL. That application was dismissed on February 7, 1997, but the Applicant (Appellant) was later successful in the Court of Appeal where the trade-mark in question was expunged and costs were awarded to the Appellant, in both Divisions.
[3] This assessment was convened at Toronto, Ontario, on October 4, 1999. The Appellant/Applicant was represented by legal counsel but the Respondents were not. Mrs. Latchandai Persaud appeared on her own behalf and argued that the Respondents owed nothing to the Appellants. In fact the reverse was the case, she argued, because the Applicant/Appellant was ordered by an American court to pay costs to the Respondents.
[4] Counsel responded by pointing to the Federal Court of Appeal decision (supra) granting costs in these proceedings to the Applicant/Appellant. After I explained to Mrs. Persaud that, in my view, the Applicant/Appellant had authority to bring this assessment, Mrs. Persaud requested an adjournment without day to obtain new legal counsel. Counsel for the Appellant/Applicant opposed this request vehemently because Mrs. Persaud was either unwilling or unable to provide definite plans or a reasonable expectation for obtaining new counsel (There appears to be some dispute involving the Respondents' former counsel).
[5] In the circumstances, I decided to proceed with this assessment, but I indicated to Mrs. Persaud that I would take this assessment under reserve in order to allow the Respondents reasonable time to obtain the services of professional legal counsel. Should the Respondents be successful in doing so, I would be willing to entertain a request for supplementation of representations on the assessment. Counsel for the Applicant/Appellant agreed to proceed on this basis.
[6] Following the assessment, Mrs. Persaud filed a Notice of Motion on October 22, 1999 in the Appeal Division for a stay. She also filed a Notice of Intention to Act In Person. That motion was dismissed on December 3, 1999 and costs were again made payable to the Appellant. At the time of writing these reasons, no further representations have been filed by either of the parties with respect to this matter.
[7] I have reviewed the Court record thoroughly. I have also considered the criteria set out in Rule 400(3) and assess the Applicant/Appellant's Bill of Costs as follows.
[8] In the Trial proceeding, the Applicant's costs for services under items 1, 13(a), 14(a) and 26 are allowed. I also assess 7 units under Tariff item 5, and 3 units at 1 hour under item 6 in respect of the Respondents' motion to file supplementary affidavit evidence. I decline to assess costs for the motion for leave to file reply affidavit evidence because the Court did not award costs in it's disposition of that motion. I also refuse the claim for costs in respect of the motion for security. The Court fixed lump sum costs for that application.
[9] The Appellant's claim for services in the Appeal Division are allowed, except for the 4 units claimed under Tariff item 21(b) for the oral hearing of the Respondents' motion. That motion was conducted on the basis of written presentations without the personal appearance of the parties.
[10] The disbursements claimed by the Applicant/Appellant appear to be reasonable. They are therefore allowed in full, including the claim of $1,700.50 for agency fees which were the result, according to counsel, of an issue raised by the Respondents alleging that the Appellant's counsel was in conflict of interest.
[11] In conclusion, the Applicant's costs in the Trial Division proceedings are assessed in the amounts of $3,400.00 for fees and $1,044.61 for disbursements and G.S.T. The Appellant's costs in the Appeal Division are assessed at $2,500.00 for fees and $3,167.96 for disbursements and G.S.T. Certificates of Assessment will issue in the total amounts of $4,444.61 and $5,667.96, respectively.
Sgd. (Gregory M. Smith)
Gregory M. Smith
Assessment Officer
Ottawa, Ontario
January 4, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: T-64-95
IN THE MATTER OF the Trade-marks Act (R.S.C. 1985, c. T-13)
- and-
IN THE MATTER OF trade-mark registration no.
TMA 249,436 for the trade-mark SHILING OIL
BETWEEN:
LING CHI MEDICINE CO. (H.K.) LTD.
Applicant
- and -
MOHAN PERSAUD, LATCHANDAI PERSAUD and
1013579 ONTARIO INC. dba
UNIVERSAL FOODS AND MERCHANDISE CO.
Respondents
Docket: A-172-97
IN THE MATTER OF the Trade-marks Act (R.S.C. 1985, c. T-13)
- and-
IN THE MATTER OF trade-mark registration no.
TMA 249,436 for the trade-mark SHILING OIL
BETWEEN:
LING CHI MEDICINE CO. (H.K.) LTD.
Appellant
(Applicant)
- and -
MOHAN PERSAUD, LATCHANDAI PERSAUD and
1013579 ONTARIO INC. dba
UNIVERSAL FOODS AND MERCHANDISE CO.
Respondents
(Respondents)
PLACE OF ASSESSMENT: Toronto, Ontario
DATE OF ASSESSMENT: October 4, 1999
REASONS BY: G.M. Smith, Assessment Officer
DATE OF REASONS: January 4, 2000
APPEARANCES:
| Dan McKay for the Applicant (Appellant) |
Latchandai Persaud for the Respondents (Respondents)
SOLICITORS OF RECORD:
Gowling, Strathy & Henderson
Barristers & Solicitors
| Toronto, Ontario for the Applicant (Appellant) |