Date: 20081110
Docket: T-2278-06
Citation: 2008
FC 1249
BETWEEN:
PHARMACOMMUNICATIONS HOLDINGS
INC.
Applicant
and
AVENCIA INTERNATIONAL INC.,
JASON LEWIS,
DONALD LAJOIE AND GREGORY KOCHUK
Respondents
ASSESSMENT OF COSTS - REASONS
Johanne Parent
Assessment Officer
[1]
On
July 2, 2008, the Court (Mr. Justice Frenette) dismissed with costs the
application for various types of relief pursuant to section 53.2 of the Trade
Marks Act. Counsel for both parties filed their submissions on costs and
agreed on the written disposition of the assessment of the respondents’ bill of
costs.
[2]
In
consideration of the factors under rule 400(3) of the Federal Courts Rules,
the respondents requested in their submissions on costs, an award of costs in
accordance with Column VII of Tariff B of the Federal Courts Rules and
further sought in their reply submissions, solicitor and client scale costs. Rule
407 of the Federal Courts Rules stipulates that: “Unless the Court
orders otherwise, party-and-party costs shall be assessed in accordance with
column III of the table to Tariff B”. The order of Mr. Justice Frenette simply
states that, “the application is dismissed with costs against the applicant”.
Costs must, therefore, be assessed in accordance with Column III.
[3]
In
light of Column III of the Tariff, the respondents seek the maximum number of
units for all assessable services claimed in their bill of costs. The
respondents were entirely successful in responding to this application. In his
decision, Mr. Justice Frenette indicates that:
…there is no mention of actual or
potential damage in the applicant’s notice of application. Nor is there any
mention of actual or potential damage in the applicant’s memorandum of fact and
law. The applicant has not established two of the conditions required in
passing-off and because of the absence of evidence with regard to potential or
actual damage on the respondents, (he) could not conclude that the respondents
were involved in passing-off under subsection 7(b) of the Trade Marks Act.
One cannot
conclude in referring to this excerpt of the Court’s decision that this
application was frivolous and vexatious. Nowhere is it indicated in Mr. Justice
Frenette’s decision that the application brought by the applicant was, pursuant
to Rule 400(3)(k) improper, vexatious, and unnecessary or taken through
negligence, mistake or excessive caution.
[4]
The
applicant in its submissions on costs alleged that the respondents accused the
applicant of improper conduct and further mentions that these allegations were
not supported by any specific evidence. Accordingly, it was submitted that any
costs award should be reduced to punish the respondents for making such
allegations. Mr. Justice Frenette had the opportunity to hear counsel on all
matters pertaining to this file. Upon making his final decision, he did not
make any findings based on these allegations nor did he comment on them or use
this issue as a basis for making any special costs order. The above, will,
therefore, not be a consideration in the amount of costs to be awarded.
[5]
Taking
into account the relative complexity of this case, the apparent amount of work
and actual time in Court, six units will be allocated to Item 2 for the
preparation and filing of the respondents’ record. Four units will be allocated
to Item 13 a) for counsel’s preparation for hearing and one unit for Item 25.
[6]
Counsel
claimed three units times four hours for their appearance at the hearing on
June 9, 2008 under Item 13 b). Three units for each hour where counsel appeared
in Court will be allocated under Item 14 a). However, in view of my reading of
the Court’s Abstract of hearing for that day, the number of hours will be
reduced to two hours and fifteen minutes.
[7]
The
respondents claimed five units for the preparation for cross-examination on
affidavits of both Jason Lewis and Ronald Maheu (Item 8). I will allow three
units for the preparation for the cross-examination of Mr. Lewis held on July
4, 2007. With regard to Mr. Maheu’s cross-examination, it appears from the
Court’s record that the cross-examination related to his affidavit sworn on
January 25, 2008 was filed in support of the applicant’s motion for leave to
file additional affidavit material. The Court’s record does not indicate that
Prothonotary Aalto in dealing with this motion allowed costs to any parties on
this motion. Therefore, no units will be allocated under Item 8 for the
cross-examination of Mr. Maheu.
[8]
Seven
units are claimed by the respondents for a memorandum of fact and law under
item 19. This assessable service can be located in Tariff B of the Federal
Court Rules under sub-heading F which pertains to appeals to the Federal
Court of Appeal. This proceeding does not constitute an appeal as contemplated
by Rule 335 of the Federal Court Rules. Furthermore, the respondents
have already been compensated under Item 2 for the preparation and filing of
all records or materials.
[9]
As concluded
by the Assessment Officer in Marshall v. Canada, [2006] F.C.J. No. 1282 at
par. 6 “The Federal Courts Act sections 4 and 5.1(1)
defining the Federal Court, and Rule 2 of the Federal
Courts Rules defining an assessment
officer, mean that the terms "Court" (as used in item 24 of
Column III of Tariff B for the time of counsel to travel to a venue) and "assessment officer" refer to separate and
distinct entities.” Here, the Court did not provide any direction for the travel fees of counsel to
attend the hearing or cross-examinations and, therefore, I do not have the
jurisdiction to allow anything for item 24.
[10]
Item
26 for the assessment of costs is reduced to four units considering the
documentation on file and the relative complexity of the bill of costs.
[11]
Photocopies
and mileage/meals are the only amounts claimed for disbursements contested by
the applicant. In looking closely at the exhibit attached to the affidavit of
Daniel J. MacKeigan sworn on July 14, 2008, it seems that some portions of the
amount claimed for photocopies pertain to the filing of the respondents’ motion
for which no costs were allowed by the Court. I reduce the amount claimed for
photocopies to $450.00. The exhibit attached to the affidavit in support of the
disbursements claimed is not specific about the trips claimed under mileage and
meals. Considering the elements found in the Court file to explain those trips
along with counsel’s location, the amount claimed will be reduced to $200.00.
All other disbursements claimed are substantiated, not contested by the
applicant and are all charges considered necessary to the conduct of this
matter. The amounts are reasonable and are, therefore, allowed.
[12]
The
bill of costs is allowed at $ 4584.24 plus GST ($229.21) for a total amount of
$4813.45.
“Johanne Parent”
Toronto, Ontario
November 10,
2008
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