Date: 20060224
Docket: T-1323-04
Citation: 2006 FC 254
BETWEEN:
BRILLIANT TRADING INC.
Plaintiff
- and -
TUNG WAI WONG and
ZHEN HING ENTERPRISE LTD.
Defendants
Assessment Officer
[1] The Court granted default judgment in this action, for trade-mark infringement and passing off, and fixed the costs of the motion and the action at $2,000.00 payable forthwith. The Defendants' motion to set aside the default judgment was dismissed with costs. The Plaintiff presented a bill of costs for said motion (hereafter the "Motion Bill"). The Court subsequently found the Defendants guilty of contempt of court for violating the terms of the default judgment and awarded solicitor-client costs, to include costs for two show cause orders by which the determination of costs had been deferred to the contempt hearing, to the Plaintiff. The Plaintiff presented a bill of costs for the contempt proceeding (hereafter the "Contempt Bill"). I issued a timetable for written disposition of these bills of costs.
[2] The Defendant, Tung Wai Wong (hereafter the "Wong Defendant"), led evidence that the Defendants do not have assets. Those circumstances are irrelevant in the determination of issues of an assessment of costs. The Wong Defendant led written submissions in which he promised to pay the $10,000.00 contempt penalty. He also argued, but without providing a relevant underlying rationale, that the bills of costs should generally be reduced to minimum amounts. He singled out Quicklaw charges as of particular concern for the claimed disbursements.
[3] Effectively, the absence of any relevant representations by the Defendants which could assist me in identifying issues and making a decision leaves the Plaintiff's bill of costs unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters.
[4] In the circumstances of this litigation, the claims in the Motion Bill for counsel fee items, at maximum or mid-range values, are generally arguable within the limits of the award of costs. However, certain disbursements warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs. I concede that it may be difficult to anticipate with certainty which researched cases online might ultimately be relevant. The proof here is less than absolute in that the parameters of the research were not in evidence. The less that evidence is available, the more that the assessing party is bound up in the assessment officer's discretion, the exercise of which should be conservative, with a view to a sense of austerity should pervade costs, to preclude prejudice to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. I reduce the $275.22 claimed in the Motion Bill for Quicklaw to $180.00. I think that the $488.25 claimed for photocopies may include something for client copies, a charge which is proper in the account as between solicitor and own client, but not in a party and party bill of costs. I allow a reduced amount of $402.00. The Motion Bill claims $30.00 (witness fees) for each of four individuals cross-examined on their affidavits. The Wong Defendant did not directly challenge whether Tariff A3(1) contemplates allowance of such claims. Tariff A3(1) permits recourse to the tariff of the relevant provincial superior court. Appendix C Schedule 3 of the Rules of Court of the Supreme Court of British Columbia permits such witness fees for "an examination, a hearing or trial". Senior counsel appearing before me in various provinces have referred to deponents being cross-examined on their affidavits as witnesses. I allow the $30.00 claimed for each, which I consider to have included any expenses. In all other respects, the Motion Bill is allowed as presented.
[5] As for the Contempt Bill, para. [20] of the Court's decision dated September 7, 2005 asserted that the well-established practice is to allow solicitor-client costs to the party bringing the motion for a finding of contempt of court as said party should not have to bear the full costs of prosecuting the contempt to ensure compliance with a court order. That does not permit unreasonable or excessive costs. The Contempt Bill includes counsel fees for arranging service of the show cause order and for investigation into the continued contempt. As well, it includes Quicklaw and photocopying charges of $533.24 and $435.50 respectively, in addition to several other disbursements. In my opinion, the record establishes that the actions of the Defendants contributed to the difficulty of this contempt proceeding. Although I do not concede it appropriate in all instances, the Wong Defendant's submissions have not convinced me that the use of second counsel was so outrageous as to warrant reductions. I allow the Contempt Bill as presented and note that said result is an example of the significant financial consequences possible for litigants disregarding court orders and associated court proceedings.
[6] The Motion Bill presented at $9,080.79, is assessed and allowed at $8,899.32. The Contempt Bill is assessed and allowed as presented at $25,595.78.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1323-04
STYLE OF CAUSE: BRILLIANT TRADING INC.
- and -
TUNG WAI WONG et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE
OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: February 24, 2006
WRITTEN REPRESENTATIONS BY:
Mr. Paul Smith for Plaintiff
Mr. Tung Wai Wong for Defendants
SOLICITORS OF RECORD:
Paul Smith Intellectual Property Law for Plaintiff
Vancouver, BC