Date: 20000824
Docket: T-1642-90
BETWEEN:
NURI'S WATERCOLOUR DESIGNS CO. INC.
and NURI YILDIZ
Plaintiffs
- and -
FIFTH AVENUE COLLECTION LTD., JASON
BUTLER, RAY BUTLER and PAMELA BUTLER
Defendants
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
[1] This action was discontinued by the plaintiffs in June 1998 following the issuance of a notice of status review. The defendants' bill of costs was filed by Mr. Paul Brett on July 11, 2000 pursuant to the provisions of Rule 402 with a request that the assessment proceed on the basis of written submissions.
[2] Mr. Bruce Green, the solicitor for the plaintiffs, filed written representations on August 11, 2000 and Mr. Brett filed his response on August 17. Mr. Green argues this claim was of extreme simplicity, specifically one of copyright infringement in respect of certain jewellery designs. Furthermore, counsel points out that the statement of defence was only three pages in length, that no examinations for discovery were held, that the only step taken in the action was an exchange of affidavits of documents and the case was discontinued without further steps being taken. In response Mr. Brett agrees the case was one of average complexity, but not one of extreme complexity. In assessing the various items of fees and disbursements I have given consideration to the relevant factors provided at Rule 400(3).
Counsel Fees
[3] Defendants' counsel claims the amount of $550.00 (5.5 units) for the preparation and filing of pleadings. However, Tariff B does not allow for fractions of units. Under this item the range is from four to seven whole units and each unit has a value of $100.00. Mr. Green suggests that four units would be reasonable. His opponent contends that 5.5 units would be sustainable for a case of average complexity.. I will allow five units.
[4] Four units are claimed for discovery of documents. Affidavits of documents were filed by each party. Mr. Green specifies that the plaintiffs' affidavit listed only nine documents and the defendants' twenty-three, totalling thirty-two pages. I think three units are reasonable.
[5] Four units are also claimed by Mr. Brett for the preparation for examinations for discovery. Mr. Green mentions that while examinations for discovery had been scheduled to take place on September 16 and 17, 1991, those examinations were cancelled by the parties four days prior to the event and never occurred. The tariff provides a range of two to five units for the preparation of and for the actual examinations for discovery. In the circumstances I will reduce this claim to two units.
Disbursements
[6] An amount of $320.85 is claimed for corporate search charges. Mr. Green argues the invoice from Crease & Company lists the name of ten companies and on that basis only one-tenth of this account should be allowed. Mr. Brett replies the defendants were obliged to search Nuri's Watercolour Designs Co. Inc. and any related names including Abraxas Contemporary Jewellery Ltd. one of Nuri's operating corporations which was disclosed in the course of the plaintiffs' production of documents. He adds that although the account of Crease & Company refers to ten corporations, this only arises by virtue of their reporting on all companies with similar names which were disclosed, which is a common phenomenon when conducting corporate searches. I agree with Mr. Brett's explanation and will allow this disbursement in full.
[7] An amount of $84.41 is claimed for facsimile and long distance charges. Mr. Green suggests to cut this amount in half in the absence of evidence to support these expenses. Mr. Brett's position is that $0.50 per page for facsimile transmissions is a reasonable rate and that furthermore the defendants are residents of Moose Jaw, Saskatchewan, which meant long distance charges for all telephone communications with their solicitor. Assessment officers have over the years accepted claims for various disbursements without hard evidence if the expenditures appear to have been reasonably incurred during the course of litigation. I believe this item fits this pattern and will be allowed.
[8] The last item is for photocopies of documents and authorities provided to the Court in the amount of $78.75. Mr. Green feels the photocopying rate is excessive based upon the pleadings and the affidavit of documents and he offers to cut it in half. Counsel for the defendants submits that the rate of $0.25 per page is a conventional amount and that copies of cases relating to legal research on the issues affecting the case were made. This claim is based on 315 photocopies. In my view it appears to be a little excessive and the amount will be reduced to $39.38 as suggested by Mr. Green.
[9] The defendants' bill of costs will be taxed and allowed in the amount of $1,000 for fees, $444.64 for disbursements and $101.12 for G.S.T. A certificate will issue in the total amount of $1,545.76.
Halifax, Nova Scotia
August 24, 2000 François Pilon
FEDERAL COURT OF CANADA
TRIAL DIVISION
Docket: T-1642-90
Nuri"s Watercolour Designs Co. Inc.
and Nuri Yildiz
-and-
Fifth Avenue Collection Ltd. Jason Butler
Ray Butler and Pamela Butler
Defendants
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: F. PILON, Assessment Officer
DATE OF REASONS: August 24, 2000
APPEARANCES:
| Bruce M. Green for Plaintiffs |
| Paul J. Brett for Defendants |
SOLICITORS OF RECORD:
Oyen Wiggs Green & Mutala
| Vancouver, BC for Plaintiffs |
Thompson Dorfman Sweatman
| Winnipeg, MB for Defendants |
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