Docket: T-2168-10
Citation: 2011 FC 879
BETWEEN:
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PRECISION DOOR & GATE SERVICE LTD.
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Applicant
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and
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PRECISION HOLDINGS OF BREVARD, INC.
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Respondent
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ASSESSMENT
OF COSTS – REASONS
Charles E.
Stinson
Assessment Officer
[1]
The
evidence indicates the following sequence of events underlying the assessment
of the Applicant’s bill of costs, which I directed be addressed by way of
written submissions:
(a) On
December 24, 2010, the Applicant commenced an application under section 18 and
subsection 57(1) of the Trade-marks Act to strike out three trade-mark
registrations owned by the Respondent.
(b) On
January 27, 2011, the Applicant consented to the Respondent’s request for a
five-day extension of the ten-day deadline for the latter’s Notice of
Appearance on the assumption that the Respondent would extend the same courtesy
concerning the Applicant’s evidence if necessary.
(c) On
March 2, 2011, the Respondent requested a 15-day extension (to March 21, 2011)
of the 30-day deadline for the filing of its evidence. On March 4, 2011,
counsel for the Applicant advised opposing counsel that he did not yet have
instructions. On March 7, 2011, counsel for the Applicant refused a second
request for an extension made earlier that day by opposing counsel.
(d) On
March 7, 2011, the Respondent advised the Applicant that, to preserve its
rights, it would be forced to file a motion to extend the deadline and
attempted to serve the motion (of an even date) by facsimile. After being
advised that the Applicant had not been served with the motion, and after no
response to a request for consent to serve by facsimile, the Respondent on
March 11, 2011 served and filed a motion dated March 10, 2011, to extend the
deadline.
(e) On
March 16, 2011, the Applicant served and filed its Reply Motion Record. On March
16 and 18, 2011, the Applicant consented to the Respondent’s requests for an
extension of the deadline for the latter’s evidence. On March 22, 2011, the
Respondent served and filed two Notices of Abandonment for the March 7 and 10,
2011 motions respectively.
I. The Applicant’s Position
[2]
Counsel
for the Applicant noted that, had the Respondent disclosed its proposed
evidence as invited to do so, his client might have been inclined to
consent to an extension of the deadline (it had earlier consented to the
late filing of the Respondent’s Notice of Appearance), but as the Respondent
instead brought a motion, the Applicant was forced to prepare a Reply Motion
Record. The motion was premature and ultimately unnecessary, thereby warranting
maximum counsel fee item 5 costs (7 units x $130/unit for the Reply Motion
Record) and mid-range costs (4 units) for fee item 26 (the assessment of
costs). The disbursements of $90, $20 and $33.91 were respectively for
photocopies, court agent and courier.
[3]
The
Applicant argued that there is no case law supporting the Respondent’s premise
that the Applicant’s eventual consent to the requested time extension was an
implicit consent to withdrawal of the motion without costs. Rule 402, which
explicitly provides for costs forthwith further to an abandoned motion,
requires a consent to avoid its effect, which did not occur here. Rather, the
Applicant proposed a reasonable course, i.e. disclosure of the proposed
evidence and the reasons for a delay, to preclude the need for the motion and
the Reply Motion Record, but the Respondent chose to ignore this and should
therefore pay the Applicant’s resultant costs. The Respondent has not suggested
an alternate amount of costs.
II. The Respondent’s Position
[4]
The
Respondent argued that the Applicant’s January 27, 2011 correspondence above
implied that the parties would act cooperatively if and when extensions were
required. The Respondent did as the Applicant requested by disclosing in the
motion the reason for the requested extension, i.e. the Respondent’s location
in the United
States. As
the Applicant’s eventual consent made the motion moot, it was therefore
withdrawn. The motion had requested that no costs be awarded. The Respondent
argued that these circumstances and the Applicant’s implicit consent to
withdrawal of the motion without costs mean the Applicant has waived any costs
that it may otherwise have been entitled to under Rule 402.
[5]
The
Respondent argued that the Applicant’s actions forced it to bring the motion.
The extension would not have prejudiced the Applicant. As the Applicant’s
deadline under Rule 369(2) for its Reply Motion Record was March 21, 2011
and as this matter was resolved by the Applicant’s March 16 and 18
consents, the Applicant’s choice to prepare, serve and file its response to the
motion was premature and unnecessary, and contrary to its own March 7, 2011 suggestion
for resolution prior to the expiry of the 15-day deadline. The Respondent
promptly withdrew the motion to preclude improper waste of the Court’s
resources. The motion had raised only one issue, i.e. whether the Respondent
could serve and file its evidence outside the 30-day deadline.
The respective representations were 13 and 12 paragraphs in length. The
Respondent argued that the Applicant should be denied Rule 402 costs and
alternatively that any such costs should be at the lowest end of the scale.
III. Assessment
[6]
I am
not the “Court” as that term is used in Rule 402 and therefore I do not have
the jurisdiction to dispense with Rule 402 costs as urged by the Respondent:
see para 13 of Madell v Canada, [2011] FCJ No 432, 2011 FCA 105
(AO) [Madell]. Paragraphs 15 and 16 of Madell set out my
general approach for assessments of costs and for counsel fee items
respectively.
[7]
Essentially,
the Respondent needed or wanted to extend the deadline for its evidence.
The Applicant wanted to see the proposed evidence before it would consider
a consent. The Respondent decided to file a motion to protect its position
concerning its proposed evidence. The Applicant’s counsel likely did some work
on the Reply Motion Record prior to its service and filing on March 16, 2011,
the date of the execution of his first consent to a time extension.
[8]
There
was nothing at all here to warrant anything above minimum tariff values for
counsel fees, which I allow. I find the disbursements totaling $143.91 plus tax
in order, except for $2.37 tax which I remove from the courier item because,
although the bill of costs claims an HST charge of 12%, the evidence (Fed Ex
invoice) clearly shows only a GST charge of 5%. The Applicant’s bill of costs,
presented at $1,762.78, is assessed and allowed at $886.81.
“Charles E.
Stinson”
Vancouver,
BC
July
13, 2011
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