Date: 19991105
Docket: T-2810-97
BETWEEN:
ANNE GEDDES
UR1 INTERNATIONAL (HR) LIMITED
970994 ONTARIO INC., c.o.b. as
PICTURE PERFECT
Plaintiffs
- and -
LAMIN TECH CORPORATION LTD.
Defendant
ASSESSMENT OF COSTS - REASONS
P. Pace
Assessment Officer
[1] This is an action for infringement of copyright in published photographic artistic works by one of the plaintiffs, Anne Geddes. The Statement of Claim was filed on the 31st of December, 1997. A Defence was filed on the 6th of February 1998. On August 20, 1999, and after several interlocutory motions including a motion on behalf of the plaintiffs for Summary Judgment, the plaintiffs wholly discontinued these proceedings.
[2] Rule 402 of the Federal Court Rules, 1998 provides, in part:
| ... a party against whom an action , application or appeal has been discontinued... is entitled to costs forthwith. |
On the basis of these provisions, the defendant sought and was granted an appointment for the assessment of its costs returnable at Toronto on the 13th of October 1999.
[3] Mr. Morris Cooper appeared on behalf of the defendant. No one appeared on behalf of the plaintiffs although duly served with the appointment, as evidenced by the affidavit of Anne White sworn on the 18th of October 1999. At the outset of the assessment, Mr. Cooper informed me that he had received a telephone call from counsel for the plaintiffs, Mr. Mitchell, who advised that he would not be attending this assessment.
[4] On reviewing the Bill of Costs I noted that most of the fee items were claimed at the high end of Column III. Counsel provided a brief background of the case as well as chronology of events. He commented on the amount of work that had to be done to defend this proceeding and noted that, ultimately, it resulted in the plaintiffs fully abandoning their claim. Counsel also explained that these proceedings were important and involved a legal issue which, to his knowledge, had never been decided. Moreover, the bulk of the work resulted from the plaintiffs" own decision to bring its motion for Summary Judgment. This created substantial material and research as well as lengthy oral and written cross-examinations. This matter was of great importance to the defendant as well because of the individuals involved (i.e. Anne Geddes, a prominent artist) and the case therefore took on a rather high profile. At the end of the day, counsel argued, and on the basis of the defendant's successful defense against the Summary Judgement motion, the plaintiffs' were unable to properly establish a chain of title to its distributors.
[5] On reviewing the court file, I appreciate that a considerable amount of work was involved. Having regard to the criteria set out in Rule 400(3), however, I am not convinced that this litigation warrants the highest level under Column III in all instances. I have therefore assessed this Bill as follows.
[6]
| Item
|
Description
|
Units Claimed
|
Units Allowed
|
Dollars
|
| 2
|
Preparation of Defence
|
7
|
6
|
$600.00
|
| 3
|
Amendment Motion by plaintiffs heard on March 30, 1998
|
2
|
0
|
0
|
No award of costs was made by the Court on this motion. The amendment by the plaintiffs did not incur a resulting amendment by the defendant. This item can therefore not be allowed.
| Item
|
Description
|
Units Claimed
|
Units Allowed
|
Dollars
|
| 8 & 9
|
Preparation and attendance on April 22, 1998 for Cross-examinations of Mr. Ghofrani
Preparation
Attendance
|
2
3
|
2
3
|
$200.00
$300.00
|
This service was claimed as a combined item of 5 units. Mr. Cooper broke it down to 2 units for preparation and 3 units for attendance. These claims appear reasonable and are allowed.
| Items
|
Description
|
Units Claimed
|
Units Allowed
|
Dollars
|
| 5
|
Receipt and Review of plaintiffs" Summary Judgment Motion June 29, 1999 (169 pages) plus supplementary materials (40 pages) and preparation of materials in response
|
7
|
6
|
$600.00
|
| 8
|
Preparation Cross-examination of Mr. Todd & Mr. Asceniuk
|
5
|
|
$400.00
|
| 8
|
Preparation Ghofrani Cross-examination
|
5
|
4
|
$400.00
|
| 9
|
Attendance Ghofrani Cross-examination
|
6
|
3
|
$300.00
|
| 9
|
Attendance on Cross-examination of Mr. Todd and Mr. Asceniuk
|
6
|
3
|
$300.00
|
| 8
|
Preparation of Written Cross-examination re Anne Geddes
|
7
|
4
|
$400.00
|
| Item
|
Description
|
Units Claimed
|
Units Allowed
|
Dollars
|
| 27
|
Legal Research
|
8
|
3
|
$300.00
|
Counsel submitted that extensive legal research was required with respect to the motion for Summary Judgment because there had never been, to his knowledge, a Canadian decision under this part of the copyright legislation. Mr. Cooper indicated that eight hours of research time was incurred, for which he normally bills at $300 per hour. Although identified in the defendant's Bill of Costs under Tariff item 28, I have considered this item under number 27 because Mr. Cooper clarified at the assessment that it was he and not his law student who actually conducted the research. I note that Tariff item 27 restricts fees for this service to a range of 1 to 3 units. Research time is a factor which is normally taken up in the fees allowed in respect of each of the services itemized from 1 through 26 in the Tariff. The argument of counsel for the defendant as to the existence of exceptional and novel circumstances in the present case was persuasive however, in my view, especially given the absence of any argument to the contrary from the plaintiffs. In the circumstances of this particular case, I will therefore allow 3 units under item 27.
| Item
|
Description
|
Units Claimed
|
Units Allowed
|
Dollars
|
| 26
|
Assessment of Costs
|
4
|
3
|
$300.00
|
[7] Disbursements:
Statement of Defence $150.00
The Federal Court Tariff does not impose a filing fee for a Statement of Defence unless it contains a Counterclaim. No Counterclaim was filed in this instance and this disbursement must be disallowed.
[8] The other amounts claimed as disbursements, with the exception of $35.00 in respect of a Notice of Intent, are proven and will be allowed. No invoice was produced in regard to a filing fee for a Notice of Intent and it must consequently be refused.
Photocopy Charges:
[9] The affidavit of disbursements subsequently filed by the defendant indicates that the amount of $75.00 for photocopy charges was incorrectly claimed. The proper amount, according to the defendant, should be $330.57. In my opinion, any amendment to a Bill of Costs under assessment must in normal circumstances, and absent a consent or agreement from the other parties, be served in order to provide opposing parties with an opportunity to respond. Not to provide this opportunity could of course be quite prejudicial, notwithstanding sometimes the relatively small amount in question. Defendant's counsel chose to continue with his existing Bill rather than incur the further expense of serving this material again on the plaintiffs. I therefore allow $75.00 for photocopies as initially claimed by the defendant.
[10] The Bill of Costs is assessed at $4,100.00 for fees, $1,593.72 for disbursements and GST of $111.56 on disbursements, for a total of $5, 805.28. A Certificate of Assessment will issue for this total amount.
Toronto, Ontario
November 5, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: T-2810-97
ANNE GEDDES
UR1 INTERNATIONAL (HR) LIMITED
970994 ONTARIO INC., c.o.b. as
PICTURE PERFECT
Plaintiffs
- and -
LAMIN TECH CORPORATION LTD.
Defendant
DATE OF ASSESSMENT: October 13, 1999
| PLACE OF ASSESSMENT: Toronto, Ontario |
REASONS BY: P. Pace, Assessment Officer
| DATE OF REASONS: November 5, 1999 |
APPEARANCES:
No one appearing for the Plaintiffs
Mr. Morris Cooper for the Defendant
SOLICITORS OF RECORD:
Morris Cooper, Barrister
Cumberland Court
99 Yorkville Avenue
Toronto, Ontario
M5R 3K5 for the Defendant
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