Date: 19980525
Docket: 97-T-42
BETWEEN:
CANADIAN OLYMPIC ASSOCIATION -
ASSOCIATION OLYMPIQUE CANADIENNE
Appellant
- and -
USA HOCKEY INC.
and
THE REGISTRAR OF TRADE-MARKS
Respondents
ASSESSMENT OF COSTS - REASONS
GERALD PARLEE,
ASSESSMENT OFFICER
1 This assessment of costs of the Respondent, USA Hockey Inc., was presented by Mr. Grant Lynds in Ottawa, May 21, 1998. It follows as a result of a motion on January 12, 1998 when the Appellant sought leave to file an appeal of the Registrar of Trade-mark's decision to give public notice of the adoption and use of U.S.A. Hockey & Design as an official mark in the Trade-Marks Journal on March 15, 1995. The Appellant's motion was dismissed with costs including travel expenses.
2 Respondent filed an affidavit supporting his assessment on May 15, 1998. Appellant filed written submissions on May 20, 1998 but did not appear in person for the assessment.
3 After pointing out the addition error in para. 10 of Appellant's submission, $2,546.78 instead of $1,546.78, Mr. Lynds proceeded to address the four issues contested in Appellant's written submissions.
Item 24 - Travel - Respondent's Assessment: 5 units - Appellant's Assessment: nil
4 In written submissions, Appellant disputes that the order of the Court, "dismissed with costs including travel expenses", was intended to include an award of counsel fees for travelling time. An award of travel costs including item 24 fees only applies, counsel argued, where it has specifically been ordered by the Court. Otherwise, the Assessment Officer is without the discretion to award that item and is restricted to, in the present case, assessing only the disbursements for travel.
5 Reference is made to Sim & McBurney v. Buttino Investments et al. (1997), (unreported) (Federal Court of Appeal) Denault, J.A. at p. 4 paragraph [6]:
"... when it comes to a claim pursuant to item 24 of Tariff B, which specifically indicates that travelling time by counsel to attend a hearing is not left within the discretion of the taxing officer but with the discretion of the Court, it is normal that the bench that heard the appeal be the first seized of the application".
6 On this point, Respondent noted the wording of the order in the above cited matter "dismissed with costs" differs significantly from that of the Honourable Madam Justice Tremblay-Lamer in this matter, which specifically includes "travel expenses", thereby exercising her discretion to include it within item 24.
7 Respondent also cited Sanmammus Compania Maritima S.A. et al. v. Ship Netuno et al. (1995), 102 F.T.R. 181 where the Honourable Madam Justice Tremblay-Lamer was seized with a motion for directions to the Taxing Officer addressing item 24 at paragraphs [34] and [35].
"The plaintiffs therefore seek a direction to the Taxing Officer that all such travel time by counsel be allowed in accordance with item 24, Part II of Tariff B. I am satisfied that reasonable expenses incurred by the plaintiff's counsel should be included."
8 Referring to paragraphs [6] and [7] of Sanmammus (supra), where the Honourable Madam Justice Tremblay-Lamer states that "under the new rule, the general philosophy is that party and party costs should bear a reasonable relationship to the actual costs of the litigation," Respondent suggested that 5 units is close to the actual and reasonable costs for senior counsel to travel from Toronto to Ottawa.
9 Considering the terminology used by the Honourable Madam Justice Tremblay-Lamer in paragraph 35 cited above, "reasonable expenses incurred", which included travel time by counsel, I conclude that it was the Court's intention to include item 24 when granting the order in this present matter for "costs including travel expenses". In consideration, however, of Rule 400(3), I set 3 units as a fair and reasonable allocation for this motion. Keeping in mind the new philosophy alluded to by the Honourable Madam Justice Tremblay-Lamer, I am also acknowledging the principle of partial indemnity.
Item 26 - Assessment of Costs - Respondent: 6 units - Appellant: 4 units
10 Respondent referred to paragraph 7 of Sanmammus (supra):
"Procedures and delays which could reasonably have been avoided by a party, will be taken into consideration when determining the taxation of costs."
Mr. Lynds said the Respondent's Bill of Costs was sent to the Appellant March 10, 1998 with a follow-up on April 8th. On May 5, 1998, the appointment of assessment was sent and on May 20th, the Appellant's written submissions were received. Respondent contends that 6 is the appropriate number of units for this assessment because time was required to prepare argument for the whole assessment when only four items were at issue with the Appellant.
11 I do not agree that the maximum of 6 units is warranted for this assessment and therefore accept the Appellant's submission of 4 units. I do not consider Appellant's apparent delay a relevant factor. Even in the absence of the other party, preparation for all items is sometimes prudent in the event that questions are posed by the Assessment Officer.
Item 5 - Prep. of Response - Respondent: 7 units - Appellant: 5 units
Item 6 - Appearance Respondent: 3 units - Appellant: 2 units
12 Respondent read from paragraph 4 of the Appellant's written submission: "the only substantial issue concerned is whether, in the circumstances, an extension of time to appeal was warranted". Mr. Lynds disagreed that this was a straightforward motion because:
1.the Respondent needed to coordinate agreements of both of the Respondents;
2.the application was premature due to a pending appeal;
3.the application was late; and
4.the Appellant had no interest or standing to appeal the Registrar's decision.
13 I am inclined to agree with the Appellant to the extent that the issues were not many or complex and find 5 and 2 units, respectively, to be fair and reasonable in these circumstances.
14 Respondent's assessment of costs which was presented at $3,746.78 is taxed and allowed at $2,846.78 for which a Certificate will be issued.
"Gerald Parlee"
Gerald Parlee
Assessment Officer
Ottawa, Ontario
May 25, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
COURT FILE NO.: 97-T-42
BETWEEN: CANADIAN OLYMPIC ASSOCIATION -
ASSOCIATION OLYMPIQUE CANADIENNE
Appellant
- and -
USA HOCKEY INC. and
THE REGISTRAR OF TRADE-MARKS
Respondents
ASSESSMENT OF COSTS - REASONS BY G. PARLEE, ASSESSMENT OFFICER
PLACE OF ASSESSMENT: Ottawa, Ontario
DATE OF ASSESSMENT: May 21, 1998
DATE OF REASONS: May 25, 1998
APPEARANCES:
No one appearing (written submission)for the Appellant
Grant W. Lynds for the Respondent USA Hockey Inc.
No one appearing for the Respondent the Registrar of Trade-Marks
SOLICITORS OF RECORD:
SIM, HUGHES, ASHTON & McKAY
Barristers & Solicitors
Toronto, Ontario for the Appellant
SMART & BIGGAR
Barristers & Solicitors
Ottawa, Ontario for the Respondent USA Hockey Inc.
George Thomson
Attorney General of Canada
Ottawa, Ontario for the Respondent the Registrar of Trade-Marks
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