Date: 20071031
Docket: T-1087-05
Citation: 2007 FC 1125
BETWEEN:
4059573
CANADA INC.
and
MONDO GROUP
INC.
Applicants
and
PIERRE PELLETIER
and
DANIEL DUMAIS
and
J.P. DOUMAK
TEXTILES INC.
and
COSTCO CANADA
INC.
and
IMPORTATIONS
JEREMY D. INC.
and
MARK CHEVRIER
Respondents
ASSESSMENT OF
COSTS – REASONS
DIANE PERRIER, ASSESSMENT
OFFICER
[1]
This is an
assessment of three bills of costs in writing by the respondent Costco Canada
Inc., the respondents J. P. Doumack Textiles Inc. and Mark Chevrier and the
respondent Importations Jeremy D Inc. pursuant to the Court judgment of October
2, 2006 dismissing the applicants’ action with costs.
[2]
On March 1, 2007 we sent letters to the
parties setting a schedule for the filing of representations against the three
bills of costs. We received three objections to the bill of costs from the
applicants out of time. I allowed the bill of costs objections to be filed and,
following that, I sent letters to the respondents giving them additional time
to file their replies. The respondents answered that they did not intend to
file a reply. I am now prepared to undertake the assessment of the three bills
of costs.
[3]
The assessable
services in the respondent Costco Canada Inc.’s bill of costs are allowed in
the amount of $4,360.16 ($3,840 + $230.40 (GST) and $289.76 (QST)). The
respondent is claiming the maximum units for each of the items claimed. In view
of the representations by the applicant against the bill of costs and Rule 409
of the FCR, which indicates that an assessment officer may consider the factors
referred to in subsection 400(3) of the FCR in assessing costs, I have allowed
five units for the preparation of each of the affidavits of Cindy Wong, Donna
Watt, Glorinda Burswash and Viesa St. Peter, which were filed following an
application by the applicant for an injunction. I have allowed five units in item
9 for preparation of the examination of Cindy Wong, as requested by the
respondent. I have allowed three units for attendance at the examination of
Cindy Wong, which in the circumstances seems to be reasonable. I have allowed
one unit in item 25, since it is accepted practice to grant this item where the
Court’s order of October 2, 2006 concludes this case. I have awarded three
units in item 26 for assessment of the bill of costs, since in my opinion the
assessment does not warrant the maximum number of units.
[4]
The
respondent Costco Canada Inc. is claiming double costs on account of an offer
of settlement served on the applicant on July 14, 2005. Here we must refer to Rule 420(2)
of the FCR, which indicates that if the plaintiff does not succeed against the
defendant, which is the case here, the defendant will be entitled to double
party-and-party cost from the date of service of the offer to the date of the
judgment, in this case the Court’s order of October 2, 2006, but not to double
disbursements. I have awarded costs in the amount of $3,360, but omitting items
25 and 26, which occurred after the Court’s order of October 2, 2006 which
terminated the case.
[5]
Disbursements
in the amount of $1,767.17 are awarded, since they seem to me to be reasonable
and are proven by the affidavit of Ian MacPhee and the accompanying exhibits.
[6]
The bill
of costs of the respondent Costco Canada Inc. submitted in the amount of
$13,526.81 is assessed in the amount of $9,487.33. A certificate of assessment
will be issued for this amount.
[7]
The assessable
services in the bill of costs of the respondents J.P. Doumack Textiles and Mark
Chevrier are awarded in the amount of $12,033.12 ($10,560 + GST $633.60 + QST $839.52).
I have awarded six units in item 5 for the affidavit of Martin Smith against
the motion for an interlocutory injunction, in view of its scope and Exhibits
D-1 to D-8. At the same time, on the affidavits of Mark Chevrier and Brahm
Faber I have allowed five units for each of those affidavits since they are not
extensive and do not warrant the maximum number of units requested by the
respondent. I have allowed six units in item 5 as requested (preparation and
filing of contested motion on October
2, 2006
appealing decision of prothonotary), in view of the absence of any contest by
the applicant and the outcome of the proceeding. On item 6, I have awarded
three units for each of the appearances. However, I have taken into account the
length of the appearances in Court according to the hearing summary in the
record. The appearance before Harrington J. on July 21, 2005 was 15 minutes
instead of one hour, and the same is true for the appearance before Beaudry J.
on November 7,
2005, which was
five minutes. At the same time, I have allowed an hour for the appearance on
the motion to appeal the prothonotary’s decision on October 2, 2006, as
requested.
[8]
Item 8 (preparation
of examination) has been allowed as requested for the examinations of Mark Chevrier,
held on November 15, 2005, Brahm Faber, held on November 15, 2005, and
Martin Smith, held on November 16, 2005. On the preparations for
examinations of Jacques Benhaim, Roger Azuelos, Cindy Wong, Pierre
Pelletier and Patrick Ellahad, the assessment officer cannot award these since
they are represented by different counsel and the costs are assessed on a
party-and-party basis under Rule 407 of the FCR. The same will apply to item 9
(attendance at examinations), on which I have allowed three units x two hours
for attendance at the examination of Brahm Faber, three units x three hours for
attendance at the examination of Mark Chevrier and three units x two hours for
attendance at the examination of Martin Smith, who were represented by counsel
for the respondent J.P. Doumak Textiles Inc. and Mark Chevrier. I did not award
item 9 for attendance at the examination of Jacques Benhaim, Roger Azuelos,
Pierre Pelletier and Patrick Elhahad, as they were represented by other counsel
and the assessment is still a partial offset of the amounts paid by various
parties in the record. Further, all the items 9 to do with the attendance of a
second counsel cannot be awarded, since under Tariff B there is no mention of a
second counsel for this item. If we look at Tariff B, by analogy, in item 14(b)
where a second counsel is mentioned this must be obtained from the Court. As
the order of October
2, 2006 says
nothing about this, I cannot allow this request.
[9]
On item 25
(services after judgment), I have awarded this as requested since there was an
order by the Court terminating the case. At the same time, I have allowed four
units for assessment of the bill of costs, since it seems to me that this
assessment is more complex than other assessments in the case. I have not awarded
item 27 for the other services associated with the expert affidavit of Brahm
Faber, since there appears to be no item covering this in Tariff B, for an
expert report. At the same time, I have awarded three units in item 27 for
preparation of the respondents’ reply to the “Notice of Status Review”, since
this item is often awarded in such a case.
[10]
The
respondents J. P Doumack Textiles Inc. and Mark Chevrier are claiming double
costs following the offer to settle which they served on the applicants on July
14, 2005. I have allowed the sum of $9,396 for double costs for the same
reasons as given in paragraph 4 of these reasons.
[11]
Disbursements
are awarded in the amount of $2,421.14. I have not allowed a disbursement for
service of notice to appear, since this item is not included in the assessable
services of Tariff B. However, I have allowed all the other disbursements since
they are proven by Mr. Grenier’s affidavit and the accompanying exhibits.
[12]
The bill
of costs submitted by the respondents J.P. Doumack Textiles Inc. and Mark
Chevrier in the amount of $55,070.79 is assessed in the amount of $24,414.26. A
certificate will be issued for that amount.
[13]
The fees
for assessable services of the respondent Importations Jeremy D Inc. are
allowed in the amount of $3,828.72 ($3,360 + GST $201.60 + QST $267.12). I have
allowed five units instead of the seven units claimed by the respondent for the
preparation of each of the affidavits of Sylvain Ouimet, Pierre Pelletier and
Patrick Elhadad as, according to the content of the affidavits, it seems
reasonable not to award the maximum requested. Item 6 claimed for the
appearance before Harrington J. on July 21, 2005 has been allowed based on the
length of the appearance, namely 15 minutes. The same will apply to the
appearance before Beaudry J. on November 7, 2005, which only lasted for five
minutes. Item 8 has been awarded for preparation of the examination of
Patrick Elhadad. I have not awarded item 8 for preparation of the
examination of Mr. Azuelos, since the costs are assessed on a party-and-party
basis and he is a client of the applicants, not the respondent. Item 9 has been
allowed for attendance at the examination of Mr. Elhadad, but not for that of
Mr. Azuelos and Mr. Benhaim, who are clients of the applicants. I have
allowed item 25 as requested. On the other hand, I have allowed three units for
assessment of the bill of costs since the assessment in my opinion does not
warrant the maximum units requested.
[14]
The
respondent is claiming double costs since an offer to settle was served on the
applicant on July
13, 2005. I have
awarded the sum of $2,880 in view of the reasons given in paragraph 4 of these
reasons.
[15]
Disbursements
are allowed in the amount of $1,887.86. I have not allowed costs of serving the
notice to appear, since there is no assessable service for this item in Tariff
B. However, I have allowed all the other disbursements since they are proven by
Joanne Chriqui’s affidavit and the accompanying exhibits.
[16]
The bill
of costs of the respondent Importations Jeremy D. Inc. submitted in the amount
of $17,300.10 is allowed in the amount of $8,596.58. A certificate of
assessment will be issued for that amount.
“Diane
Perrier”
ASSESSMENT OFFICIER
QUÉBEC, QUEBEC
October 31, 2007
Certified
true translation
Brian
McCordick, Translator
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