Kraft Canada Inc. v. Euro Excellence Inc., 2006 FC 1346

Date: 20061108

Docket: T-1821-02

Citation: 2006 FC 1346     

Between:

KRAFT CANADA INC.

KRAFT FOODS SCHWEIZ AG and

KRAFT FOODS BELGIUM SA

Applicants

AND

EURO EXCELLENCE INC.

Respondent

ASSESSMENT OF COSTS –REASONS

MICHELLE LAMY, ASSESSMENT OFFICER

[1]               On May 3, 2004, the applicants were awarded costs for their application for copyright infringement. Afterwards, on April 7, 2006, Mr. Justice Harrington directed an award of costs based on the high-end of Column IV of the Tariff. As requested, the assessment of costs proceeded on the basis of written submissions.

[2]               In light of the foregoing, the counsel fees are fixed at $26,100. The contested items are allowed as follows:

§         Item 6 - $80 (4 units/hour X $120/hour X 10 min) for the appearance of counsel on January 19, 2004.

§         Item 15 - No fees are allowed for the preparation of written pleadings since they were not requested or permitted by the Court as stipulated in this item.

§         Item 25 - $120 (1 unit). This item is routinely granted by assessment officers to cover any likely expenses to be incurred following final disposition.

§         Item 26 - $840 (7 units). Mr. Justice Harrington ordered that costs of the applicants be calculated under Column IV that includes, according to me, the preparation and filing of the bill of costs and written representations.

[3]               With respect to the disbursements incurred in this case, they are awarded in the amount of $18,269.92. The contested expenses are assessed as follows:

§         The repeated payments of $130 under the heading "Government Fees" were paid to the Canadian Intellectual Property Office in order to obtain certified copies of copyright registrations and licenses on an expedited basis. According to the applicants, this was necessary to have the certificates available in time for the hearing of the application. Considering these disbursements were necessary at the time they were incurred, the amount of $1,269.10 is accepted as claimed.

§         The amount of $4,937.23 claimed for external photocopying, binding and process serving charges is allowed. Taxation for eight (8) copies of certain submissions is justified by the applicants in their submissions.

§         The applicants are claiming $1,135.65 for 7,571 copies made in-house at $0.15 per page the actual cost of the photocopies established by affidavit. The respondent submits that the amount claimed is not justified since no details are provided as to what was copied. He also points out that most of the documents, including the memorandum of fact and law, were reproduced outside the law firm. I agree that the number of photocopies charged might be excessive but the total amount claimed is reasonable in this case. In the circumstances, I allow this expense as claimed. As expressed by Mr. Charles E. Stinson in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 (T.O.), assessment of costs is "rough justice" in the sense that discretion may be applied to sort out a reasonable result for costs.

§         The respondent submits that telephone and facsimile charges made to Illinois, USA, Great Britain or Switzerland are not recoverable as they are not justified. Considering that these expenses are well established by affidavit, I have no problem to allow them as claimed.

§         The applicants agree to retract the courier costs of January 2, 2003 ($14.47) and March 12, 2003 ($11.51). Therefore, the courier charges are allowed at $747.25. The costs relating to retrieval of closed-out files are also accepted as claimed in the amount of $18.75

§         In light of the written submissions, the travel costs are established at $4,217.90. These disbursements are calculated based on standard "economy" airfare from Toronto to Montreal.

§         According to the evidence, the amount of $100 claimed under "Paid Fees and Conduct Money" was necessary for the cross-examination of Mr. Clemence. I consider that it is a reasonable amount paid to cover any loss incurred by the witness.

§         Considering the complexity of the issues at bar, the computer charges totalling $687.82 are well justified and taxed as claimed.

[4]               In conclusion, I assessed all disbursements keeping in mind Mr. Justice Harrington's decision where he states:

"I am satisfied that the complexity of the issues, the detail that had to go into the preparation for the hearing, and the overall celerity of the matter justifies an award of costs based on the high-end of Column IV rather than mid-range Column III. This modest increment over a short period in fact does very little to compensate Kraft for the overall fees and disbursements it incurred in excess of $190,000."

[5]               The applicants' costs, presented at $48,532.97, are assessed and allowed in the amount of $47,475.81 ($44,369.92 X GST).

DATED AT MONTREAL THIS 8^th DAY OF NOVEMBER, 2006.

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                           T-1821-02

STYLE OF CAUSE:

KRAFT CANADA INC.

KRAFT FOODS SCHWEIZ AG and

KRAFT FOODS BELGIUM SA

Applicants

AND

EURO EXCELLENCE 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:                     NOVEMBER 8, 2006

SOLICITORS OF RECORD :

Sim Lowman Ashton & McKay

Toronto, Ontario                                                           for the applicants

François Boscher

Montreal, Quebec                                                         for the respondent