Kamsut, Inc. v. Jaymei Enterprises Inc., 2010 FC 248

Date: 20100303

Docket: T-1299-08

Citation: 2010 FC 248

BETWEEN:

KAMSUT, INC.

Applicant

and

JAYMEI ENTERPRISES INC.

Respondent

ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]               The Court dismissed with costs at the upper level of Column IV this application to expunge from the Trade-marks Register the Respondent’s registration associated with chocolates and other products. I issued a timetable for written disposition of the Respondent’s bill of costs. I find that the claimed items of costs not put in issue below by the Applicant are in order and I allow them as presented.

I.   Counsel fee items 2 (preparation and filing of all respondents’ records and materials) and 15 (preparation and filing of written argument, where requested or permitted by the Court)

A. The Respective Positions of the Parties

[2]               The Respondent conceded that no additional written argument was filed. However, the “records and materials” referred to in fee item 2 address documents not included in written argument. As well, written argument more correctly falls within fee item 15 under the subheading “E. Trial or Hearing”. It is a separate and assessable tariff item and is not a document within the meaning of the subheading “A. Originating Documents and Other Pleadings” for fee item 2.

[3]               The Applicant asserted that the Respondent’s written argument was not a separate document, but rather the memorandum of fact and law required by Rule 310(2)(f) to form part of the Respondent’s fee item 2 record. Therefore, the fee item 15 claim should be denied.

B. Assessment

[4]               I held in paragraph 40 of AstraZeneca AB v. Apotex Inc., [2009] F.C.J. No. 1019 (A.O.) [AstraZeneca] that fee item 15 was not intended as additional compensation for fee item 2 work and that “the use in fee item 2 of the adjective ‘all’ in conjunction with “respondents’ records and materials” precludes additional compensation using other items such as fee item 15.” I held similarly in paragraph 27 of Biovail Pharmaceuticals Canada v. Canada (Minister of National Health and Welfare), [2009] F.C.J. No. 858 (A.O.). I therefore disallow fee item 15.

II. Disbursements: Registry Fees ($147.20) and BC Online Searches ($27.80)

A. The Respective Positions of the Parties

[5]               The Respondent conceded the Applicant’s point that $30.66 of the $147.20 should be removed because it addressed other litigation and not this matter. The Applicant argued there was no evidence that the BC Online Searches were reasonable and incurred. The Respondent conceded there was no evidence to support the claimed $27.80, but argued the searches occurred and addressed this litigation.

B. Assessment

[6]               I noted in paragraph 4 of AstraZeneca above the subjective elements and the rough justice in assessments of costs. An award of costs does not mean indemnification without accountability. I allow a conservative amount of $15 for the searches.

[7]               The Respondent’s bill of costs presented at $8,022.00 is assessed and allowed at $6,668.14.

“Charles E. Stinson”

Vancouver, BC

March 3, 2010

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1299-08

STYLE OF CAUSE:                          KAMSUT, INC. v. JAYMEI ENTERPRISES INC.

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                    CHARLES E. STINSON

DATED:                                                                                 March 3, 2010

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: