Date: 20050210
Docket: T-2270-00
Citation: 2005 FC 222
Ottawa, Ontario, February 10, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
CHARLES D. MACLENNAN and
QUADCO EQUIPMENT INC.
Plaintiffs
and
GILBERT TECH INC.
Defendant
REASONS FOR ORDER AND ORDER
[1] On December 6, 2004, I dismissed the infringement action in this case. The parties had indicated a desire to make some written submissions concerning costs. The Court has received the submissions and now delivers its decision.
[2] The defendant is seeking assessable fees in its favour in the maximum amount provided in column IV of Tariff B of the Federal Court Rules, 1998 (the Rules). It is also claiming an order for costs for a second counsel under item 14 of the Tariff. Referring to the Rules and the case law, the defendant raises the following arguments:
(1) During the proceedings, shortly before the commencement of the trial, the plaintiff changed its counsel. An amended statement of claim was filed, necessitating an amendment to the statement of defence and additional exhibits. This procedure was said to have recast the litigation within a very tight time frame.
(2) The unnecessary nature of the challenge to the qualification of the defendant's expert resulted in a waste of time.
(3) A second amendment was filed by the plaintiff on the first day of the continuation of the trial, alleging a violation of claim number 2, which was completely new.
[3] The plaintiff disputes this claim by submitting that:
(1) The proposed amendments were authorized and allowed without costs and did not delay the date of the trial or unnecessarily prolong the duration of the proceeding. These amendments were useful and necessary, for the contributory infringement allegations were serious.
(2) The workload is not greater than in other patent cases.
(3) The plaintiff was justified in challenging the qualification of the defendant's expert.
(4) There is no reason to allow costs for a second counsel since Ms. Chantal Pitarelli, who attended at trial beside Mr. Sotiriadis, was not admitted to the Bar until June 22, 2004. She was therefore articling during the first week of the trial, in January. As to the second week in September, this counsel made no submissions on behalf of the defendant and there is no evidence of any support work done by her during the trial.
(5) The question of the validity of the patent, in regard to which the Court did not rule, was raised by the defendant, and this necessitated several hearing hours.
[4] Under sections 400 et seq. of the Rules, the Court has discretion in determining the amount of the costs. Section 407 provides that unless the Court orders otherwise, the costs shall be assessed in accordance with column III (median amount) of Tariff B. A number of factors may be considered in the exercise of the discretion. They are found in paragraphs 400(3)(a) to (o).
[5] Having carefully read the submissions of the parties, I see no particular reason to allow costs over and above column III (median amount) of Tariff B for the following reasons:
(1) The amendments to the statement of claim were allowed without costs.
(2) I agree with the plaintiff that the duration of the hearings is not the consequence of the amendments but rather of an unrealistic estimate by counsel.
(3) The scope of the issues is comparable to other patent cases.
(4) In regard to the request for fees for a second counsel, the record does not disclose any evidence of special work rendered to the principal counsel of the defendant by Ms. Pitarelli. She no doubt rendered effective and devoted support to Mr. Sotiriadis but she made no oral submissions (AB Hassle v. Genpharm Inc. (2004), 34 C.P.R. (4th) 18 (F.C.T.D.), 2004 FC 892, paragraph 24).
(5) I do not think it was unreasonable for the plaintiff to dispute the qualifications of the defendant's expert. In any event, the evidence in this regard was of short duration.
ORDER
THE COURT ORDERS that the plaintiff shall pay the defendant the costs that will be assessed in accordance with column III (median amount) of Tariff B of the Federal Court Rules, 1998.
"Michel Beaudry"
Judge
Certified true translation
Jacques Deschênes, LL.B.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2270-00
STYLE: CHARLES D. MACLENNAN AND
QUADCO EQUIPMENT INC.
v.
GILBERT TECH INC.
WRITTEN SUBMISSIONS WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER
AND ORDER: Beaudry J.
DATED: February 10, 2005
SUBMISSIONS BY:
François Guay FOR THE PLAINTIFFS
Jean-Sébastien Brière
Marc-André Huot
Bob Soririadis FOR THE DEFENDANT
SOLICITORS OF RECORD:
SMART & BIGGAR FOR THE PLAINTIFFS
Montréal, Quebec
LEGER ROBIC RICHARD FOR THE DEFENDANT
Montréal, Quebec
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