Date: 20040402
Docket: T-2221-98
Citation: 2004 FC 521
BETWEEN:
ROLLS-ROYCE plc, ROLLS-ROYCE AND
BENTLEY MOTORS CARS LIMITED, and
BENTLEY MOTORS LIMITED
Plaintiffs
- and -
IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED,
ROLLS-ROYCE MOTOR CARS LIMITED, and
BENTLEY MOTORS LIMITED
Defendants
Assessment Officer
[1] On May 24, 2002, the Plaintiffs obtained summary judgment (hereafter the "judgment") with costs of the action relating to the Defendants' infringement of a number of trade-marks. The relief in the judgment included declarations of validity of trade-marks owned by the Plaintiffs as well as orders restraining the Defendants from infringing the trade-marks, directing the surrender of certain materials and awarding damages. The Plaintiffs subsequently sought and received directions on costs, which included assessment at the top end of Column IV of Tariff B further to the amount of preparation required on the part of the Plaintiffs.
[2] The record discloses several instances of concerns raised over the Defendant, Ian D. Fitzwilliam, who is a lay person, purporting to act for the other corporate Defendants. At the hearing of the assessment of costs before me, Mr. Fitzwilliam confirmed that he had accepted, on behalf of himself and of the corporate Defendants, notice of process associated with assessment of the Plaintiffs' costs and stated that he is the principal of the corporate Defendants. I noted that the Plaintiffs' bill of costs had been outstanding for some time and asked what he has done to engage counsel. He stated that he has taken no such step as he is impecunious and the corporate Defendants are in the process of being dissolved. At this late stage of the litigation, I felt that no useful purpose would be served by an adjournment and I proceeded with the assessment of costs.
[3] Mr. Fitzwilliam referred to several interlocutory orders which had awarded lump-sum costs against him and asserted that he intended solely to argue before me that the Plaintiffs were precluded from pursuing this bill of costs because he thought that costs had already been fully addressed on a "pay as you go" basis. I then explained to Mr. Fitzwilliam, consistent with Bills of Costs and Assessment, Federal Court Practice - 2003 Update, September 19, 2003, the Continuing Legal Education Society of British Columbia, the basic concepts and principles of assessments of costs in litigation, including the meaning of the lump-sum awards of costs referred to by him and stated that the Plaintiffs were entitled to claim costs, over and above these various lump-sum awards, further to the judgment. I then confirmed with Mr. Fitzwilliam that he is unfamiliar with the Rules and Tariff as they apply to costs. I stated that, in my opinion, he was not in a position to make a reasoned item by item challenge to the Plaintiffs' bill of costs and that I was not willing, in the circumstances of this litigation, to let him run up the appearance costs payable by the Plaintiffs to their counsel as a function of an unfocused hearing before me on costs.
[4] I then addressed counsel for the Plaintiffs as follows. Effectively, the absence of any relevant representations on behalf of the Defendants which could assist me in identifying issues and making a decision leaves the Plaintiffs' bill unopposed in any rational fashion. My view, often expressed in comparable circumstances, is that the Federal Court Rules, 1998 do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. There were items for services of counsel which might have attracted disagreement, but the amount claimed in total in the bill of costs is generally arguable within the limits of the award of costs as reasonable in the circumstances of this litigation. However, there are items that may require intervention as a function of my expressed parameters above and given that general opposition to this bill of costs has been expressed. In all other respects, the bill of costs would be allowed as presented, subject to confirmation of arithmetic.
[5] I then outlined the items of concern and issued a timetable with a short timeline for written submissions. At that point, Mr. Fitzwilliam stated that he had just grasped the real implications of the bill of costs. He questioned the Plaintiffs' entitlement to GST and the reasonableness of $22,179.00 for the expert witness, hinted at researching material to introduce as a challenge to items in the bill of costs and indicated that he would likely appeal my decision to preserve his rights of challenge. With regard to his concerns for GST and the expert's account, I noted for him that my allowance above of the Plaintiffs' bill of costs was consistent with my considerations respectively in Englander v. Telus Communications Inc. [2004] F.C.J. No. 440 (A.O.) and in Merck & Co. Inc. et al. v. Apotex Inc. [2002] F.C.J. No. 1116 (A.O.), affirmed by [2002] F.C.J. No. 1357 (F.C.T.D.), and Bayer A.G. et al. v. Apotex Inc. et al. [2002] F.C.J. No. 1693 (A.O.). I also noted for him that jurisprudence such as The Queen v. Capitol Life Ins. Co. [1988] 2 C.T.C. 101 at 110 (F.C.A.) holds that supplementary evidence cannot be introduced on an application to review an assessment of costs. I reminded him that he has had ample time to take advantage of his right to cross-examine on the Plaintiffs' affidavit supporting costs, but has not done so. Counsel for the Plaintiffs then drew my attention to certain errors of presentation in the bill of costs and requested permission to correct them. She also requested permission to insert a claim for interest and for item 26 (assessment of costs) per rule 408(3). I granted said permission and directed the service and filing of an amended bill of costs.
[6] My first concern was the June 10, 1999 decision granting default judgment against the corporate Defendants and awarding Column III costs payable by the corporate Defendants, but including a provision that said default judgment would be dissolved in its entirety if they were successful on their appeal of an earlier order of the Court. The record indicated (see paragraphs [10] to [14] inclusive of the reasons for judgment dated May 24, 2002) that said appeal had indeed been successful, but I wished to confirm with the parties that this was their understanding as well. Mr. Fitzwilliam confirmed that said appeal had been successful. Therefore, I conclude that my assessment of the Plaintiffs' costs applies against all of the Defendants.
[7] My second concern was a function of the principle that a counterclaim is essentially an action independent of the main action. I wished to satisfy myself that the claims for costs of the counterclaim were a function of the judgment or perhaps a separate judgment. The Plaintiffs noted that the Defendants' counterclaim had sought relief declaring that two registered trade-marks were invalid and striking their registrations. Instead, the judgment held that both trade-marks were valid. Therefore the Plaintiffs are entitled to the associated costs of the counterclaim. I have examined the pleadings and I agree with the Plaintiffs.
[8] My third concern was a function of my explanation above to Mr. Fitzwilliam of the concepts and principles of costs with particular regard to my jurisdiction relative to Rules 400(1) and 405. The order dated December 5, 2000, adjourned the Plaintiffs' motion for an interlocutory injunction sine die returnable on three days' notice, continued the interim injunction already in place until disposition of the merits of the interlocutory injunction, and deferred the costs of the instant motion to the judge presiding on the motion for an interlocutory injunction. I wished to satisfy myself that the latter judge had made the appropriate exercise of Rule 400(1) discretion for costs relative to the December 5, 2000 order.
[9] The Plaintiffs asserted that the record confirms that their motion for an interlocutory injunction was heard at the same time as their separate motion for summary judgment and that the directions on costs (order dated March 26, 2003, by the judge who heard both motions) mean that the judge defined by the December 5, 2000 order granted the costs associated with this latter order.
[10] I note that the Abstract of Hearing indicates consent to the motion for an interlocutory injunction, but with certain caveats. The reasons for judgment dated May 24, 2002, summarize the history of the interim injunction existing at the time of the final hearing for an interlocutory injunction, but the Court's summary of issues at paragraph [41] does not specifically refer to an injunction. However, the point numbered 8 in paragraph [73] issues the injunction sought by the Plaintiffs. The reasons for the order giving directions on costs (March 26, 2003) refer at paragraph [1] to the Plaintiffs' request for "costs of the plaintiffs' motions for interlocutory injunctions and summary judgment" and then state at paragraph [2]:
In my reasons for order in this application for summary judgment, I ordered that "The plaintiffs shall have their costs of this action plus GST." The plaintiffs in their draft order for summary judgment, at paragraph 12, requested that "The plaintiffs shall have their costs of this action on a solicitor-client basis plus GST." Besides not granting costs on a solicitor-client basis, I granted the costs requested by the draft order. For that reason, I am not prepared to reconsider my original order in this respect. In any event, although not necessary for this motion, it would appear that costs of this action would include the type of costs sought by the plaintiffs.
[My emphasis]
Authorities such as Genpharm Inc. v. The Minister of Health et al., [2002] F.C.J. No. 1018 (F.C.A.) at para. [8] permit me to examine reasons of the court to determine, if necessary, the intent of the court's decision. The judge who presided at the single hearing encompassing the motion for summary judgment and the motion for an interlocutory injunction granted the relief sought in the single decision dated May 24, 2002, via several distinct pronouncements therein. I presume that said judge was aware that his judgment for costs could not displace or vary interlocutory awards of costs: see Webster v. Canada (Attorney General), [2003] F.C.J. No. 1652 (A.O.). Therefore, I read paragraph [2] of his reasons above that the Plaintiffs are to have their costs of the event of the interlocutory injunction and I allow them as presented.
[11] The Plaintiffs presented item 26 as subject to doubling (Rule 420 and settlement offers) and argued that the directions on costs did not limit doubling of counsel fees to events up to and including judgment. I agree and note that, in any event, given the imperative language of Rule 420(1), I had the jurisdiction under Rule 405 to address this issue. Rule 420(1) does not specify a final date for doubling, but it would presumably be at the last assessable event in the litigation, ie. here, item 26. I allow item 26 as presented at 7 units, plus doubling. The Plaintiffs' Amended Bill of Costs is assessed and allowed as presented at $101,818.00 with interest thereon pursuant to the Federal Courts Act, s. 37(1) and the Ontario Courts of Justice Act, ss. 129-130 (s. 127 prescribes the applicable rates).
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
April 2, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2221-98
STYLE OF CAUSE: ROLLS-ROYCE plc, et al.
Plaintiffs
- and -
IAN D. FITZWILLIAM et al.
Defendants
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: March 19, 2004
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: April 2, 2004
APPEARANCES:
Geneviève M. Prévost for Plaintiffs
Ian D. Fitzwilliam for himself
SOLICITORS OF RECORD:
Smart & Biggar for Plaintiffs
Toronto, ON