T-2235-95
BETWEEN:
CANADIAN OLYMPIC ASSOCIATION
ASSOCIATION OLYMPIQUE CANADIENNE
Plaintiff
and
NETTOYEUR DE DENTIER OLYMPIC INC.
OLYMPIC DENTURE CLEANER INC.
Defendant
TAXATION OF COSTS - REASONS
MARC D. REINHARDT, Taxing Officer
This taxation of the Plaintiff's Bill of Costs on a party and party basis came on for hearing before me on Wednesday, February 12, 1997 in Toronto. Ms. Debra L. Montgomery of the firm Sim, Hughes, Ashton & McKay appeared on behalf of the Plaintiff. No one appeared for the Defendant although it was duly served with the Appointment and the Bill of Costs.
This action arose originally from alleged trade-mark infringement committed by the Defendant in marketing its denture cleaning product. The matter did not go to trial but, following a motion by the Plaintiff for summary judgment, the Honourable Mr. Justice Rothstein granted judgment on April 26, 1996 and restrained the Defendant from using the mark OLYMPIC in its trade-mark or trade name. The Defendant was also ordered to pay to the Plaintiff the costs which it has incurred to date in the action.
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The Bill of Costs runs as follows:
TARIFF B NO. OF UNITS VALUE
Item 1:
Preparation and filing of originating documents
including Statement of Claim, including cease and desist
letter prior to issuing Statement of Claim, and corporate
search 7 $700.00
Item 5:
Preparation and filing of contested motion for summary
judgment including materials and factum 7 $700.00
Item 6:
Appearance on a motion or application relating thereto 3 $300.00
Item 26:
Taxation of costs 6 $600.00
Item 27:
Preparation of consent Judgment and attendances
relating thereto 2 $200.00
Item 27:
Research for motion for judgment 2 $200.00
Item 27:
Various correspondence to and from defendant's solicitor
and defendant personally, including correspondence with
defendant's solicitor regarding removal as solicitor of
record for defendant 5 $500.00
TOTAL TAXABLE FEES $3,200.00
DISBURSEMENTS
Service of documents $49.90
Courier 15.73
Photocopying 91.96
Telephone 20.24
Telecopier 54.10
Postage 11.95
On-line charges 11.33
Translation Charges 401.75
Litigation Costs: LPIC - Claim 23.48
Agency Costs 36.00
TOTAL DISBURSEMENTS $716.44
TAXABLE SUPPLY $3,916.44
G.S.T. (7%) $ 274.15
TOTAL TAXABLE SUPPLY $4,190.59
NON-TAXABLE DISBURSEMENTS:
Court Costs - filing Claim 50.00
Government Fee re: certified TMA901,067 25.00
75.00 75.00
TOTAL AMOUNT BILLED $ 4,265.59
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Before allowing, reducing or taxing off any of the amounts claimed for fees and disbursements, I took it upon myself, in the absence of any representative from the Defendant, to question somewhat the propriety of some of the items on the Bill and request by way of supplementary written submissions for many of those items. My involvement, however, fell short of taking an adversarial position in these proceedings. In arriving at the following result I also had due regard for the criteria set out in Rule 346(1.1).
Items 1, 5 and 6 are allowed as claimed since they represent, in the circumstances of this case, a fair and reasonable allocation of units. Items 26 and 27 cannot be allowed as claimed and are hereby either reduced or refused entirely.
ITEM 26
Taxation of Costs 6 units $600.00
This is not the type of case where the maximum amount of units would be warranted. I believe that a fair and reasonable assessment would be to allow 4 units for this Item.
ITEM 27
Preparation of consent Judgment
and attendances relating thereto 2 units $200.00
ITEM 27
Research for motion for Judgment 2 units $200.00
ITEM 27
Various correspondence to and from
defendant's solicitor and defendant
personally, including correspondence
with defendant's solicitor regarding
removal as solicitor of record for
defendant 5 units $500.00
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Two things need to be addressed here. First, as I put it to counsel at the hearing, whether or not Tariff Item 27 could be included more than once in a taxation. And second, whether or not the services as sought are allowable under Item 27. Counsel for the Plaintiff was gracious enough to provide me with additional written submissions in relation to many issues contained in the Bill, including submissions pertaining to the inclusion of Item 27 more than once in a Bill. Here is what she wrote about the Item:
| It is submitted that Tariff items may be included more than once and, in fact, appear to be designed for that purpose. [Your] attention is drawn to Tariff items 4, 5 and 6 which have to do with interlocutory motions and applications. It is submitted that in many actions there will be more than one motion which is contested and more than one uncontested motion. Surely it is contemplated that a party who has been awarded costs will be able to recover costs for preparation of each motion and appearance on each motion. This would necessitate inclusion of those Tariff items more than once. |
| In addition, tariff item 8 refers to preparation for an examination "whether on discovery, affidavit or in aid of execution". In many actions the[re] will be an examination for discovery and one or more cross-examinations on affidavits. In such actions, this Tariff item would have to be referred to more than once in order to recover the costs associated with each examination. |
I believe that counsel has neatly and aptly addressed the first issue and has thus effectively put the matter to rest. Item 27 can be used more than once to cover the various services connected with the litigation for which recovery is not possible under other Items.
As for the second issue, that is whether or not all three services claimed herein are proper services to be included under Item 27, the matter is a bit more complex. I am reminded by counsel of the observations of Madam Justice Tremblay-Lamer in Sanmommas Compania Meritima SA v. "Netuno" (1995), 102 F.T.R. 181, that under the new Tariff the general philosophy is that party and party costs should bear a reasonable relationship to the actual cost of the litigation. The emphasis has thus been shifted more towards the recovery of the actual costs of the litigation.
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I am comfortable in concluding that what Madam Justice Tremblay-Lamer said above must of necessity be balanced against the overriding principle of partial indemnification which governs party and party taxations. If that was not the case, we would leave the realm of party and party taxations and enter into the more predictable world of party and party taxations on a solicitor and client scale. I, however, must refrain from allowing costs and services that would be recoverable under the higher scales of taxations alluded to above but would exceed the partial indemnification limit under a pure party and party taxation scheme.
Item 27 pertains, as far as I can ascertain, to unspecified services the distinguishing traits of which have been left to the discretion of the Court or the Taxing Officer, as the case may be, to define. Each taxation case must turn on its own facts importing, therefore, an element of subjectivity into the analysis of whether or not a service is taxable under Item 27. I have come to the conclusion that two of the three heads of claim sought under Item 27 must be disallowed for the following reasons.
The first head is labelled "Preparation of consent Judgment and attendances relating thereto". I note in passing that the Bill of Costs speaks of "consent" judgment whilst the Court records show that no such "consent" judgment was ever sought, let alone obtained. The Plaintiff was granted a "summary" judgment which is not the same thing. Is this substitution fatal? My position has always been that I can proprio motu correct clerical and mathematical errors in a Bill. I think this was clearly an inadvertent clerical error from which no critical consequences should, in principle, flow. I have thus made the correction and substituted the word "summary" for the word "consent". Be that as it may however, I am of the opinion that the corrected version of the service is not a proper service to be sought under Item 27. Counsel has already claimed for the "summary" judgment under Items 5 and 6, which deal with interlocutory motions or applications of the type contemplated herein. Therefore, it cannot claim twice for the same service under different Items of the Tariff.
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The second head of claim under Item 27 is "Research for motion for judgment". Even assuming the research was done for the "consent" motion, I must nevertheless refuse the said claim since it is subsumed into Item 5 ("Preparation and filing of a contested motion, including materials and responses thereto").
As for the third head of claim under Item 27 ("Correspondence"), I have come to the conclusion that that service is allowable, at least in this particular case. Because of the subjectivity element discussed earlier, the precedential value of what follows is, however, circumspect to say the least.
The context in which this particular service is sought is that the principal behind the corporate Defendant Nettoyeur de Dentier Olympic Inc., Mr. René Boisvert, wrote directly -without prior knowledge of the counsel retained by his company - to counsel for the Plaintiff and to the Trade-Mark office to deny any infringing activities by his company and to further advise that the said company would not cease and desist from using the allegedly infringing material. The position averred by Mr. Boisvert in his letter was in total contradiction with the position which counsel for the corporate Defendant, properly referred to as the solicitor on the record, was at the relevant time asserting. Counsel for the Plaintiff was thus put to the effort of writing on March 7, 1996 to counsel for the Defendant, the solicitor on record, to inform him of the existence of this particular letter from Mr. Boisvert and to inquire whether or not counsel was still representing the corporate Defendant. In the wake of this unusual turn of events, counsel for the Defendant filed in due course an application to be removed as the solicitor on the record. That application was granted by the Court. I am of the opinion that in view of the above circumstances it would be unfair to saddle the Plaintiff with all the costs associated with the exchange of correspondence, which necessarily flowed from Mr. Boisvert's missive. Based on the facts of this case and a review of the matter, I therefore believe that this is a proper case in which to allow an award under Item 27. That being said, however, I am not prepared to allow the amount requested (5 units) for the following reasons.
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First, I have consistently held that I am without authority to allow a level of units above the parameters set in any given Column of the Tariff [see National Steel Car Ltd. v. Trenton Works Inc., Court file No. T-2863-94, unreported taxation dated May 17, 1996 at pages 5 and 6, and ERA Electronics (Canada) Ltd. v. Québec North Shore and Labrador Railway et al., Court file No. T-334-95, unreported taxation dated January 14, 1997 at page 5] unless either so directed by the Court or otherwise provided by the Rules. Second, even if I could go beyond the limits set by the Tariff, the services alluded to above are not worth an allocation exceeding the high end of the scale. A fair and reasonable allocation for the correspondence would thus be 2 units or $200 in this case. Counsel's fee portion of the Bill of Costs submitted at $3,200.00 is therefore allowed at 23 units or $2,300.00.
I turn now to the disbursements, the total amount of which is $716.44. Translation charges for $401.75 was the only item I questioned at the hearing. Counsel submitted that the approach suggested in Sanmommas Compania Meritima SA v. "Netuno" (supra) should also be applicable to disbursements of this kind. In the present action, as she wrote in her supplementary submissions, the translation charges were reasonably necessary in the proceedings as it would not have been possible for the Plaintiff to pursue the case without these services. If the Defendant had been successful, she further advanced a contrario sensu, it may have been reasonably necessary for the Defendant to engage the services of a translator to conduct its case if the Defendant was not fluent in the English language. In conclusion, she submitted that parties should not be prevented from having documents translated, or penalized for their need to have documents translated, by having these items disallowed. According to her, part of the actual costs related to this litigation were the translation charges.
My experience with translation charges as a disbursement has been brief: only one encounter and it was in the case of Energy Absorption Systems Inc. v. Y. Boissonneault & Fils Inc. et al., Court file No. T-2263-86, unreported taxation dated January 30, 1991. There, I refused the claim because in view of the bilingual nature and function of this Court, pleadings may be filed in either of the official languages and thus, the unsuccessful party should not have to bear the costs for the translation of the pleadings it has submitted. .../ 8
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I am aware of two other cases where translation charges were also refused. See Promafil Canada Ltée. v. Munsingwear Inc., Court file No. T-456-91, unreported decision of M. Lamy, T.O., dated June 22, 1994 and, more recently, Penthouse International Ltd. v. 163564 Canada Inc. et al., Court file No. T-1479-93, unreported taxation of M. Lamy, T.O., dated March 17, 1995. Therein, my learned colleague denied translation expenses in circumstances identical to the case at bar. Although I am not bound by my colleague's decisions, I must accord them the greatest of respect. I note also that I have not heard in this case any compelling argument that would force me to depart from the position I have taken in Energy Absorption (supra).
The Federal Court of Canada is a national court with jurisdiction across Canada. Parties can use the official language of their choice for their dealings with the Court. The Plaintiff is a public authority within the meaning of the Trade-Marks Act, R.S.C. 1985, c. T-13, with its executive offices situated in the Province of Québec. I also take notice of the fact that the Association has an official bilingual denomination (see the style of cause). The inference I draw is that the Plaintiff is quite capable of conducting its business in either or both official languages. For reasons of its own, the Association chose an English speaking law firm from Ontario to represent it in these proceedings. The firm chosen by the Plaintiff filed a Statement of Claim in the English language. The corporate Defendant, on the other hand, is a very small company with its head office also situated in the Province of Québec. It also has a bilingual denomination. The Defendant chose at the very beginning of this litigation a Francophone lawyer who filed the Defendant's Defence in French only. The decision of the Plaintiff to file and sue in English flowed from its particular choice of a law firm and it is something that ought not necessarily have a bearing on the choice of language to be used by the opposing side. In other words, parties appearing in this Court have a Constitutionally1 guaranteed right to plead in the official language of their choice. In my opinion, that choice should not result in the imposition of additional costs. I therefore disallow this claim for translation charges. .../ 9
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The other disbursements are allowed, as presented, as I am satisfied as to their reasonableness. The disbursements' portion of the Bill of Costs presented at $716.44 is allowed and taxed at $314.69.
The Plaintiff's Bill of Costs, submitted at $4,265.59 inclusive of GST is taxed and allowed at $2,872.72 inclusive of GST. A Certificate of Taxation will be issued in this amount.
Marc D. Reinhardt
Taxing Officer
DATED at Ottawa, Ontario, May 15, 1997.
IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION
COURT NO.: T-2235-95
BETWEEN:
CANADIAN OLYMPIC ASSOCIATION
. ASSOCIATION OLYMPIQUE CANADIENNE
Plaintiff
- and -
NETTOYEUR DE DENTIER OLYMPIC INC. OLYMPIC DENTURE CLEANER INC.
Defendant
___________________________________________________
TAXATION OF COSTS - REASONS
___________________________________________________
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2235-95
STYLE OF CAUSE: Canadian Olympic Association / Association Olympique canadienne v. Nettoyeur de dentier Olympic Inc. / Olympic Denture Cleaner Inc.
PLACE OF TAXATION: Toronto
DATE OF TAXATION: February 12, 1997
REASONS OF TAXING OFFICER: Marc D. Reinhardt
DATED: May 15, 1997
COUNSEL
Ms. Debra L. Montgomery for the Plaintiff
No one appearing for the Defendant
SOLICITORS ON THE RECORD:
Sim, Hughes, Ashton & McKay
330 University Avenue, 6th floor
Toronto, Ontario
M5G 1R7 for the Plaintiff
Unrepresented for the Defendant
__________________1 Sections 133 of the Constitution Act, 1867 and 19(1) of the Charter. See on this the unreported decision of Noël J. in Lavigne v. Human Resources Development et al., Court file No. T-1977-94, dated May 15, 1995.