Date: 19990910
Docket: T-1868-93
AND IN THE MATTER OF the Trade-marks Act Revised
Statutes of Canada 1990 Chapter T-13
AND IN THE MATTER OF Canada Trade-mark application
No. 633,418 REST ASSURED WITH POSTURE BEAUTY &
Design
BETWEEN:
PARK AVENUE FURNITURE CORPORATION
Appellant
- and -
SIMMONS I.P. INC.
and
THE REGISTRAR OF TRADE-MARKS
Respondents
ASSESSMENT OF COSTS - REASONS
G. Wilkins,
Assessment Officer
[1] This is an assessment of the costs of the Respondent Simmons I.P. Inc. (hereinafter Simmons).
[2] This proceeding flows from a decision of the Trade-marks Opposition Board made on behalf of the Registrar of Trade-marks on May 31, 1993. Following a Notice of Status Review issued by the Court on July 16, 1998, and the Appellant having failed to respond to that Notice, the Court ordered on January 13, 1999 that this appeal be dismissed for delay.
[3] The Respondent's Bill of Costs was submitted to the Court on April 10, 1999 seeking $9,400.00 in fees and $4,297.52 for disbursements and taxes. On April 26, 1999, at the request of counsel, an Appointment issued for the assessment to take place at Toronto, Ontario, on June 22, 1999. Counsel appeared at the hearing on behalf of the Respondent Simmons, but no one appeared, although duly served with the Appointment, to represent the Appellant.
[4] Although previous Orders in these proceedings specifically provided for costs, the final Order dismissing the appeal makes no such mention. I am therefore without the requisite authority, which is the exclusive domain of the Court under Rule 400(1), to allow the Respondent's claim of 7 units for costs under Item 2 of Tariff B for preparing a Reply to the Notice of Appeal.
[5] The Respondent claims for preparation and filing of a February 23, 1993 motion. No motion of that date appears on the Court file. A motion was filed on September 23, 1993, but it was prepared by the Appellant rather than the Respondent. Costs for this service are therefore refused.
[6] Costs under Item 5 for preparing materials and filing a contested motion, including materials and responses, are allowed as claimed in an amount of 3 units for each event of March 3, 1995, June 1 and 12, 1995. No hours can be applied as a multiplier against the number of units for this service because Item 5 of the Tariff does not provide for an hourly factor.
[7] The Respondent claims a total of 45 units under Item 7 for appearing on motions on March 3 and 6, 1995 and June 12, 1995 (i.e. 3 units x 15 hours). The Court docket reveals, however, that the total hearing time was considerably less. I therefore reduce this claim to 4 hours in total, times the 3 units claimed.
[8] Fees claimed under Items 8 and 9 for preparing and attending on cross-examination appear to be reasonable and are allowed as claimed.
[9] Counsel at the assessment acknowledged that no costs were awarded by the Court in its final Order. He therefore requested that the Respondent's claim of 1 unit under Item 25 be considered instead under Item 27 for "(s)uch other services as may be allowed by the assessment officer or ordered by the Court." No particular direction from the Court appears on the record with respect to this service and I am not convinced that any special reasons exist to support an Item 27 allowance. It is therefore refused. Costs claimed under Item 26 for this assessment, however, are allowed as requested.
[10] The Respondent's claim of $3,321.88 for disbursements is supported by the affidavit of Timothy J. Sinnott sworn on April 14, 1999. They appear to be reasonable and, in the absence of adverse argument by the Appellant, are allowed in the corrected amount of $3,318.88. The amount requested for Goods & Services Taxes (GST) on disbursements is also allowed as claimed at $223.64. The GST relating to the services of counsel will be adjusted to $266.00 in accordance with the reductions noted above.
[11] In conclusion, the Respondent's Bill of Costs is assessed in the amounts of $3,800 for fees and $3,808.52 for disbursments and taxes. A Certificate of Assessment in the total amount of $7,608.52 will issue accordingly.
(signed: Gordon G. Wilkins)
Gordon G. Wilkins
Assessment Officer
Ottawa, Ontario
September 10, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: T-1868-93
AND IN THE MATTER OF the Trade-marks Act Revised
Statutes of Canada 1990 Chapter T-13
AND IN THE MATTER OF Canada Trade-mark application
No. 633,418 REST ASSURED WITH POSTURE BEAUTY & Design
BETWEEN: PARK AVENUE FURNITURE CORPORATION
Appellant
- and -
SIMMONS I.P. INC.
and
THE REGISTRAR OF TRADE-MARKS
Respondents
DATE OF ASSESSMENT: June 22, 1999
PLACE OF ASSESSMENT: Toronto, Ontario
DATE OF REASONS: September 10, 1999
REASONS BY G. WILKINS, ASSESSMENT OFFICER
APPEARANCES:
No one appearing for the Appellant
Timothy J. Sinnott
Robin Coster for the Respondent, Simmons I.P. Inc.
No one appearing for the Respondent, The Registrar of Trade Marks
SOLICITORS OF RECORD:
DOUGLAS R. ADAMS
Barrister & Solicitor
Ottawa, Ontario for the Appellant
BERESKIN & PARR
Barristers & Solicitors
Ottawa, Ontario for the Respondent, Simmons I.P. Inc.
No solicitor appearing for the Respondent, The Registrar of Trade Marks