Chum Ltd. v. Stempowicz, 2005 FC 322

Date: 20050304

Docket: T-541-03

Citation: 2005 FC 322

Between:

CHUM LIMITED, CTV INC., ASTRAL MEDIA INC.,

GROUPE TVA INC., COGECO CABLE CANADA INC.,

COGECO CABLE HALTON INC., COGECO CABLE

LINDSAY INC., ROGERS CABLE INC., ROGERS

CABLESYSTEMS ONTARIO LTD., VIDÉOTRON LTÉE,

CF CABLE TV INC., VIDÉOTRON (RÉGIONAL) LTÉE,

and MOUNTAIN CABLEVISION LTD.

Applicants

AND

DAVID STEMPOWICZ (c.o.b. as LIZARD KING'S PLAYHOUSE),

DAWN ELIZABETH BRANTON, 1254719 ONTARIO INC.

(c.o.b. as TECH ELECTRONIC SERVICES), HALTON SIGHT

& SOUND INC., JONATHAN SHAPIRA, ATILLA GYURKO

(c.o.b. as SAT-TOYS), BILL DESTOUNIS (c.o.b. as ROXY STEREO),

INTRACOMMAR INC., AFONSO JANUARIO, ORIT SHECK

(a.k.a. ORIT SCHECK), and JANE DOE AND JOHN DOE and

OTHER PERSONS, NAMES UNKNOWN, WHO DEAL IN

UNAUTHORIZED EQUIPMENT OR DEVICES

Defendants

ASSESSMENT OF COSTS -REASONS

MICHELLE LAMY, ASSESSMENT OFFICER

[1]                The bill of costs was presented on January 31, 2005, pursuant to the order of Mr. Justice Blais dated April 23, 2004. The award on a solicitor-client basis is in respect of the plaintiffs' costs against the defendant Intracommar Inc. related to the motion to show cause which took place on December 10, 2003, and the contempt proceedings which took place on March 23 and April 5, 2004.

[2]                I am satisfied with the explanations of Mr. Robert B. Swan and Ms. Julie Desrosiers, solicitors for the plaintiffs, that the fees and disbursements do relate to the show cause and contempt proceedings. Except for an amount of $ 315.00 (invoice dated April 26, 2004: meeting with Ms. Desrosiers on March 18), all other claims were not contested by Mr. Roberto T. DeMinico, counsel for the defendant.

[3]                The award of costs on a solicitor-client basis is intended to provide full indemnification of costs reasonably incurred. In his reasons for order at paragraph 41, Mr. Justice Blais refers to Madam Justice Dawson's decision in Louis Vuitton Malletier, S.A. v. Bags O'Fun Inc., (2003) F.C.J. No. 1686:

"With respect to costs, where an application for an order finding contempt of Court is successful, the normal practice is to award reasonable costs on a solicitor-client basis to the party seeking enforcement of the Court order. This reflects the policy of the Court that a person who assists the Court in the enforcement of its orders and in ensuring respect for Court orders should not be put out of pocket. See, for example, Coca-Cola Ltd. v. Pardhan (c.o.b. Universal Exporters), 5 C.P.R. (4th) 333 (F.C.T.D.) aff'd (2003) 23 C.P.R. (4th) 173 (F.C.A.) on other grounds, and the authorities reviewed therein by Associate Chief Justice Lutfy (as he then was).

[4]                Even if the total amount claimed by the plaintiffs is substantial, we have to keep in mind the "dual aspect of the plaintiffs' role, not merely to support the authority and dignity of the Court, but also to protect and preserve their own intellectual property interests, and the amount fixed should not be perceived as a form of undue punishment" (Merck & Co. et al. v. Apotex Inc., 23 C.P.R. (4^th) 89).

[5]                For these reasons, the plaintiffs' bill of costs is taxed and allowed as follows: $ 88,888.46 - $ 337.50 ($315 plus GST) + $ 5,000 (requested at taxation for assessment of costs including disbursements) = $ 93,550.96.

[6]                A certificate is issued in the amount of $ 93,550.96 plus interests calculated from April 23, 2004.

DATED AT MONTREAL THIS 4^TH DAY OF MARCH, 2005.