Date: 20071003
Docket: T-466-05
Citation: 2007
FC 1007
Ottawa, Ontario, October 3, 2007
PRESENT: The Honourable Mr. Justice
Hugessen
BETWEEN:
GENERAL MOTORS CORPORATION,
GENERAL MOTORS OF CANADA LIMITED
Plaintiffs
and
DIABCO INTERNATIONALE INC.,
MOUHAMAD ALI DIAB,
AUTO MASTER SUPPLIES KING INC., 5B GROUP
INTERNATIONAL INC.
AND AYAD (EDDY) KARKOUTI and JOHN DOE,
JANE DOE
AND OTHER PERSONS UNKNOWN
TO THE PLAINTIFFS WHO OFFER FOR SALE, SELL, IMPORT,
EXPORT, MANUFACTURE ADVERTISE OR DEAL IN
COUNTERFEIT ACDELCO MERCHANDISE
Defendants
and
DIABCO INTERNATIONAL INC.
MOUHAMAD ALI DIAB
Third parties
and
AYAD (EDDY) KARKOUTI AND
5B GROUP INTERNATIONAL INC.
Third parties
REASONS FOR ORDER AND ORDER
[1]
On April 13, 2007, I heard and granted a summary judgment motion
with costs against the defendants 5B Group International Inc.
(5B Group) and Ayad (Eddy) Karkouti (Karkouti). In the formal Order entered
April 18, 2007, I directed that costs against those defendants should be fixed
following written representations.
[2]
Plaintiffs have now filed detailed
representations together with supporting draft bills of costs. The named
defendants have filed nothing and the time fixed for doing so has expired.
[3]
The defendants were found to be responsible for
ordering, importing from China,
and putting on to the Canadian market industrial quantities of counterfeit
automotive parts. They have also been shown to have attempted to obstruct the
proper execution of an Anton Pillar Order granted herein, to have destroyed
evidence, to have indulged in misleading and delaying tactics and to have given
evidence which was misleading. The plaintiffs' request to have costs fixed on
an increased scale and on a solicitor and client basis is clearly well-founded.
[4]
The amount claimed against these defendants as
having been actually expended by plaintiffs is $164,067.88 in fees plus disbursements
of $9,620.08. While I do not question these figures I am of the view that the
amount claimed for fees represents far too high a figure to award in a case of
this sort which, although complex and detailed, did not present any questions
of law of more than ordinary difficulty.
[5]
The plaintiffs have also presented a draft bill
of costs based on Column V of the Tariff which would fix costs against these
defendants in a total amount, including disbursements as above, of $32,114.08.
[6]
This latter figure in its turn seems to me to be
too low and does not adequately reflect the outrageous character of these
defendants' misconduct or sufficiently indemnify the plaintiffs for the costs
of the action.
[7]
In my view a reasonable assessment of the share to be borne by
these defendants in the plaintiffs' costs would be a lump sum award, including
disbursements and all taxes of $60,000. That represents the full amount of the
disbursements claimed against these defendants plus fees of more than double
what would have been awarded under the Tariff.
[8]
While not representing full indemnification for the plaintiffs, a
situation which will rarely if ever be achieved, it properly reflects the
almost criminal conduct of these defendants, their flagrant abuse of the
plaintiffs' property rights, and their obstructive and delaying tactics in the
litigation.
[9]
The award will bear interest from the date of judgment, April 13,
2007.
ORDER
THIS COURT ORDERS that
The costs to be
paid jointly and severally by the defendants 5B Group and
Karkouti pursuant to the judgment pronounced herein April 13, 2007, are hereby
fixed and assessed in a lump sum of $60,000 inclusive of disbursements and taxes.
“James
K. Hugessen”
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