Express File Inc. v. HRB Royalty Inc., 2006 FC 935

Date: 20060728

Docket: T-241-02

(T-1059-02)

Citation: 2006 FC 935

Between:

EXPRESS FILE, INC.

Applicant

AND

HRB ROYALTY, INC.

Respondent

ASSESSMENT OF COSTS –REASONS

MICHELLE LAMY, ASSESSMENT OFFICER

[1]               On April 21, 2005, the Court dismissed these two appeals made under Section 56 of the Trade-Marks Act.  The assessment of the respondent’s costs proceeded on the basis of written submissions.

[2]               Having examined the record and reviewed the submissions made by the applicant, the fees are allowed in the amount of $4,500 for the following items of Tariff B: 2 (5 units X $120), 5 (15 units X $120), 6 (4 units X $120/hour X 2.5 hours/hearing), 14 (3 units X $120/hour X 2.5 hours/hearing of April 18, 2005).

[3]               The number of units requested under item 19 for the preparation of the memorandum of fact and law is allowed under item 2, as this document is part of the respondent’s record filed pursuant to Rule 310 of the Federal Courts Rules.  All claims made under item 5 are awarded, except for the preparation and filing of the respondent’s response to the applicant’s motion for an extension of time, since the order of the Court dated June 17, 2002 is silent concerning the costs of this procedure.  According to paragraph 2(2) of the Tariff, I cannot allocate to a service a number of units that includes a fraction.  Consequently, I allow 2 units per hour under item 6, and not to item 14 as requested, for the appearance of counsel on motions heard on October 7, 2002 and July 7, 2003.  As submitted by the applicant, no fees can be awarded under item 24, as there is no order or direction of the Court in that regard.

[4]               Except for the amount of $407.57 requested under the heading “miscellaneous”, I have no problem allowing the various expenses as claimed, even if no material has been filed to support the disbursements totalling $3,505.51.  Taking into account that no disbursements have been claimed in the bills of costs filed by the respondent in two coincident appeals (A-364-03 / A‑365‑03), I consider this amount to be reasonable compensation for all these matters.

[5]               For the reasons given in Court file A-364-03, all claims made in file T-1059-02 are refused and the value of the unit was readjusted in calculating the amount of fees in the case at bar.

[6]               The respondent’s costs are taxed and allowed in the amount of $8,005.51.  A certificate is issued for that amount in Court file T-241-02 and a copy of these reaons is placed in Court file T‑1059-02.

DATED AT MONTREAL THIS 28TH DAY OF JULY, 2006.

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                           T-241-02

STYLE OF CAUSE:

EXPRESS FILE, INC.

Applicant

AND

HRB ROYALTY, INC.

Respondent

ASSESSMENT WITHOUT PERSONAL APPEARANCE OF PARTIES

PLACE OF TAXATION:                  Montreal, Quebec

ASSESSMENT OF COSTS –

REASONS BY:                                  MICHELLE LAMY, ASSESSMENT OFFICER

DATE OF REASONS:                     JULY 28, 2006

SOLICITORS OF RECORD :

Sim, Hughes, Ashton & McKay

Toronto, Ontario                                                           for the applicant

Fraser Milner Casgrain

Montreal, Quebec                                                         for the respondent