Date: 20061023
Docket: T-611-01
Citation: 2006 FC 1260
BETWEEN:
FORTIER 2000 LTÉE
Plaintiff
and
MARCEL MATIÈRE
Defendant
and
MARCEL MATIÈRE
BÉTON PROVINCIAL LTÉE
Plaintiffs by counterclaim
and
FORTIER 2000 LTÉE
Defendant by
counterclaim
ASSESSMENT OF
COSTS – REASONS
DIANE PERRIER –
ASSESSMENT OFFICER
[1]
This is an
action for patent infringement, and a trial date had been set. The plaintiff
served a notice of discontinuance on the defendant, Marcel Matière, and Marcel
Matière served a notice of discontinuance on the defendant by counterclaim,
Fortier 2000 Ltée, without costs. On July 20, 2005,the Court made an
amended order removing Gowling Lafleur Henderson as solicitors of record for
the plaintiff by counterclaim, Béton Provincial Ltée, and ordering that if the
plaintiff by counterclaim did not retain new counsel, it would be deemed to
have discontinued its counterclaim, with costs. On March 21, 2006, on a motion
to review the assessment officer under section 414 of the Federal Courts Rules,
Mr. Justice Blais ruled that the plaintiff by counterclaim, Béton Provincial
Ltée, had discontinued its counterclaim as of August 12, 2005, and ordered the
assessment officer to proceed with the assessment of the bill of costs in
accordance with the amended order of July 20, 2005, with costs.
[2]
On June
26, 2006, the plaintiff/defendant by counterclaim requested that the assessment
of the bill of costs and the supplementary bill of costs proceed without
personal appearance. We sent letters to the parties on July 14, 2006,
requesting written representations. On August 7, 2006, we received a letter
from counsel for Béton Provincial Ltée, plaintiff by counterclaim, stating that
he would not be submitting written representations on the bills of costs. I am now
ready to proceed with the assessment.
[3]
The
following fees are allowed as requested in the assessment of costs:
|
Items
|
Assessable Services
|
Units under column III
|
|
2
|
Reply
and defence to counterclaim
|
7
|
|
8
|
Preparation
for the examination for discovery of Maurice Matière
|
5
|
|
7
|
Discovery
of documents
|
5
|
|
9
|
Attending
on examination for discovery of Maurice Matière (March 13 and 14, 2002) first
counsel 8 hours X 3 units per hour
|
24
|
|
8
|
Preparation
for the examination for discovery of a representative of Béton Provincial
|
5
|
|
9
|
|
15
|
|
8
|
Preparation
for the examination for discovery of Mr. Turcotte
|
5
|
|
9
|
Attending
on examination for discovery of Mr. Turcotte (March 19 and 20, 2002)
March
19, 2002, first counsel: 7 hours X 3 units per hour
March
20, 2002, first counsel 4 hours X 3 units per hour
|
21
12
|
|
2
|
Preparation
and filing of submissions under section 380 (October 10, 2002)
|
7
|
|
3
|
Amended
reply and defence to counterclaim (January 22, 2003)
|
6
|
|
8
|
Preparation
for examination of Marc Otis
|
5
|
|
5
|
Preparation
and filing of a record in response to the motion for particulars (No. 74)
including supporting documents
|
7
|
|
6
|
Appearance
on the Motion for an Order for particulars with respect to paragraph 22
of the newly Amended Reply and Defence to the Counterclaim of the
Plaintiff/Defendant by counterclaim (March 24, 2003), 1 hour X 3 units
per hour
|
3
|
|
8
|
Preparation
for the examination of Mr. Turcotte
|
5
|
|
8
|
Attending
on examinations of Mr. Otis and Mr. Turcotte (October16, 2003) 7 hours X 3
units per hour
|
21
|
|
10
|
Preparation
for the pre-trial conference including memorandum
|
6
|
|
11
|
Attendance
at pre-trial conference April 21, 2004, first counsel 2 hours X 3 units per
hour
|
6
|
|
10
|
Preparation
for pre-trial conference May 6, 2005, by telephone
|
6
|
|
11
|
Attendance
at pre-trial conference by telephone 1 hour X 3 units per hour
|
3
|
|
13
|
Preparation
for trial
|
5
|
|
25
|
Services
after order of July 20, 2005
|
1
|
|
26
|
Assessment
of costs
|
4
|
Subtotal: 184 units
X $120 = $22,080.00
GST and QST =
$3,080. 16
Total fees
= $25,160.16
Items 4, 5 and 6
[4] The following fees were not allowed: (item 4)
motion to validate service including supporting documents and (item 6)
appearance on the motion to validate service, because the order of Prothonotary
Morneau dated May 7, 2001, is silent as to costs. The same applies to the
motion for security for costs, including supporting documents and appearance on
this motion, because the order of Prothonotary Morneau dated May 7, 2001, is
silent as to costs. With respect to (item 5) the motion by the plaintiff to
strike paragraphs from the defence and counterclaim and appearance on this
motion, the order of Prothonotary Morneau dated September 5, 2001, dismissed
the plaintiff’s motion with costs; accordingly, the plaintiff must pay the
costs, not the defendant.
Item 3
[5] This concerns the plaintiff’s motion for
particulars filed on July 30, 2001, which was dismissed with costs;
accordingly, the defendant is entitled to these costs, not the plaintiff.
Items 1 and 6
[6] This concerns the preparation and filing of a
notice of appeal of a decision of Prothonotary Richard Morneau, filed on
September 17, 2001. On October 4, 2001, Mr. Justice Nadon dismissed the appeal,
with costs to the defendant, not the plaintiff. Accordingly, the assessment
officer cannot allow costs.
Items 5 and 6
[7] This concerns a motion by the plaintiff for
determination of certain objections and undertakings, as well as appearance on
this motion. The order of the Court dated December 2, 2002, is silent as to
costs, and accordingly, items 5 and 6 cannot be allowed.
Items 5 and 6
[8] The fees regarding the motion to amend the
response and defence to counterclaim, and appearance on this motion cannot be
allowed, because the order of the Court dated January 22, 2003,
awarded costs to the plaintiffs by counterclaim fixed at $350 against the
plaintiff/defendant by counterclaim, Fortier 2000 Ltée. Accordingly, the
assessment officer cannot allow them.
Items 5 and 6
[9] The fees for the preparation and filing of a
motion for a determination of certain objections made at the examinations of
Mr. Matière and Mr. Otis to direct them to provide documents, and the
undertakings and appearance on this motion are not allowed, because the order
of ¨Prothonotary Richard Morneau dated August 27, 2003, is silent as to costs.
Item 4
[10] The fees for the preparation and filing of a
motion for an order changing the timetable set by Prothonotary Morneau in his
order of August 27, 2003, cannot be allowed because on
October 24, 2003, Mr. Morneau made an order that is silent as to
costs.
Item 11
[11] The fees for attendance at the pre-trial
conference on April 21, 2004, can only be allowed for one counsel because
Tariff B makes no mention of a second counsel.
Item 1
[12] The fees with respect to the preparation and
filing of a notice of motion to appeal a decision of the Prothonotary and
appearance on the motion cannot be allowed, because the order of the Court
dated July 17, 2004, states that costs in the amount of $500 will be payable to
the defendant/plaintiff by counterclaim and not to the plaintiff/defendant by
counterclaim. Accordingly, the assessment officer cannot allow them.
Item 26
[13] I am allowing 4 units for the assessment of costs,
which appears reasonable to me in the circumstances.
Disbursements
[14] Disbursements in the amount of $12,635.40 are
allowed. The units claimed for the cost of photocopies and binding were allowed
at 50%, because the assessment officer cannot link the pages to a specific
document, and there is no doubt that photocopies and faxes were made. For that
reason, it seems reasonable to me to allow 50% of these costs. I allowed the
amount of $139.18 for costs of service, because I was able to verify that the
documents served related to an order of the Court that awarded costs.
[15] The bill of costs of the plaintiff/defendant by
counterclaim is, therefore, assessed in the amount of $37,795.56 ($25,160.16 +
$12,635.40).
[16] Regarding the supplementary bill of costs of the
plaintiff/defendant by counterclaim, the following fees are allowed in the
amount of $2,598.06 ($2,280 + GST and QST): item 5 (motion to review the assessment
officer) 7 units, item 6 (attendance on motion for review of the assessment
officer) 9 units, item 25 (services after judgment) 1 unit and item 26
(assessment of costs) 2 units. I did not allow item 27 for the presentation of
the bill of costs, because there is nothing in the Tariff to authorize it. The
same is true for appearance at the first presentation of the bill of costs;
there is nothing in the Tariff to authorize it. I did not allow item 6,
appearance by the articling student on the motion for review of the assessment
officer’s decision, because this item has already been allowed for the first
counsel. I did not allow item 13(a) for preparation for appearing on the
motion, because the Tariff provides for this appearance in item 6, and the plaintiff
already requested it.
[17] The disbursements for the supplementary bill of
costs in the amount of $924.69 are allowed, because they were established in
the affidavit of counsel Robert Brouillette and appear reasonable to me.
[18] The supplementary bill of costs of the
plaintiff/defendant by counterclaim is therefore assessed in the amount of
$3,522.75.
[19] The bill of costs and the supplementary bill of
costs of the plaintiff/defendant by counterclaim are assessed in the amount of
$41,318.31. A certificate of assessment will be issued in this amount.
_____________________
ASSESSMENT
OFFICER
QUEBEC,
QUEBEC
October
23, 2006
Certified
true translation
Mary
Jo Egan, LLB
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