Date: 20000104
Docket: T-705-95
BETWEEN:
1013579 ONTARIO INC.
Plaintiff
- and -
BEDESSEE IMPORTS LTD.
Defendant
ASSESSMENT OF COSTS - REASONS
G.M. Smith,
Assessment Officer
[1] This is an assessment of the Defendant's Bill of Costs filed on September 2, 1999. The Statement of Claim which commenced this proceeding was filed on April 7, 1995. It alleged infringement of certain registered and common law trade-marks. The Defendant moved the Court on June 28, 1996 for summary judgment. That motion was granted with respect to four of the seven marks in issue and the Defendant was awarded costs after taxation. On appeal, certain aspects of the Court's summary judgment were required to be readdressed, which was done by Order in the Trial Division dated April 27, 1998. The award of costs, however, remained undisturbed.
[2] The assessment hearing took place before me at Toronto, Ontario, on October 4, 1999. The Defendant was represented by legal counsel, but the Plaintiff was not. Instead, Ms. Latchandai Persaud, a layperson, appeared and represented herself as a principal of the Plaintiff company. Ms. Persaud argued that the Plaintiff owed nothing to the Defendant. In fact the reverse was the case, she argued, because the Defendant was ordered by an American court to pay costs to the Plaintiff.
[3] Counsel for the Defendant responded by pointing to the Court's decision (supra) granting costs in these proceedings to the Defendant and noted that the award of costs was not disturbed on appeal. After I explained to Ms. Persaud that, in my view, the Defendant had authority to bring this assessment, Ms. Persaud requested an adjournment without day to obtain new legal counsel. Counsel for the Defendant opposed this request vehemently because Ms. 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).
[4] In the circumstances, I decided to proceed with this matter, but I indicated to Ms. Persaud that I would take this assessment under reserve in order to allow the Plaintiff reasonable time to obtain the services of professional legal counsel. Should the Plaintiff be successful in doing so, I would be willing to entertain a request for supplementation of representations on the assessment. Counsel for the Defendant agreed to proceed on that basis.
[5] Ms. Persaud later moved the Court on November 1, 1999 for directions as to costs. By (amended) Order dated December 13, 1999, the Court confirmed that the Defendant is entitled to costs of the motion for summary judgment, and awarded costs of the motion for directions as well to the Defendant.
[6] As of the date of these reasons, no further representations have been received from either of the parties in respect of this assessment. I have reviewed the Court record thoroughly. I have also considered the criteria set out in Rule 400(3) and therefore assess the Defendant's Bill of Costs in respect of summary judgment as follows.
[7] The Defendant's costs under items 2 and 26 of Tariff B are allowed as claimed. Costs under item 5 of the Tariff can only be assessed in respect of motions for which the Court expressly awarded costs, being the motion for leave to file additional evidence and the motion for summary judgment. I allow 7 units for preparation and responses for each of those motions. I estimate total appearance on those motions to have been approximately six hours in total and therefore also allow 3 units, times 6 hours, under Tariff item 6.
[8] Counsel services under Tariff items 8 and 9 for examinations are allowed as claimed. The Defendant's claims under items 13(b) and 14(a), however, are refused because no trial took place. The claim under item 13(a) for preparation for trial, on the other hand, is allowable "whether or not the trial or hearing proceeds" and I therefore assess 5 units under this item as requested.
[9] The disbursements claimed by the Defendant appear reasonable, based on the evidence and the submissions of counsel at the assessment. They are therefore allowed in the full amount claimed, including Goods and Services Taxes (G.S.T.).
[10] In conclusion, the costs of the Defendant are assessed and allowed in the amounts of $12,700.00 for fees and $3,235.76 for disbursements and G.S.T. A Certificate of Assessment in the total amount of $15,935.76 will issue accordingly.
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-705-95
1013579 ONTARIO INC.
Plaintiff
- and -
BEDESSEE IMPORTS LTD.
Defendant
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:
Latchandai Persaud for the Plaintiff
| Dan McKay for the Defendant |
SOLICITORS OF RECORD:
Gowling, Strathy & Henderson
Barristers & Solicitors
| Toronto, Ontario for the Defendant |