Date: 19980812
Docket: T-309-95
| BETWEEN: |
AVANT-GARDE ENGINEERING (1994) INC.
Plaintiff
- and -
GESTION DE BREVETS FRACO LIMITÉE
-and-
LES PRODUITS FRACO LIMITÉE
Defendants
AND
COMMISSIONER OF PATENTS
Third Party
ASSESSMENT OF COSTS - REASONS
MICHELLE LAMY, ASSESSMENT OFFICER:
[1] This concerns a patent infringement proceeding heard by Mr. Justice Richard in Montréal on November 24, 25 and 26, 1997. In its judgment dated May 7, 1998, the Court allowed the application for a permanent injunction and awarded costs to the plaintiff, including costs of expertise. That decision was appealed and the appeal will be heard on September 29, 1998. It should be noted that on May 28 the Court of Appeal ordered that execution of the judgment of the Trial Division be stayed.
[2] An appointment was issued on July 7, 1998 for assessment of the bill of costs of Avant-Garde Engineering (1994) Inc., which totals $35,851.l4. The assessment was held on July 29, in the presence of Armand J. Elbaz, counsel for the plaintiff, and Nathalie Hamel, representing the defendants.
COUNSEL FEES
In its bill of costs, counsel for the plaintiff claimed the following counsel fees, totalling $27,500, under Tariff B:
| Item Assessable Service Column III/Units Amount |
Claimed
| 1 Preparation and filing of |
| Statement of Claim 7 $700.00 |
| Preparation and filing of a motion for |
interlocutory injunction on February 10, 1995
(motion # 1) 7 $700.00
2 Reply and defence to counterclaim 7 $700.00
5 Defendants" motion to dismiss
action filed on February 24, 1995
(motion # 2) 6 $600.00
Defendants" motion to add
counterclaim filed on
March 27, 1995 (motion # 3) 6 $600.00
Plaintiff"s motion to dismiss the defence
filed on July 3, 1996
(motion # 4) 6 $600.00
Plaintiff"s unilateral requisition for a date
and place of hearing filed on February 13, 1997 3 $300.00
Defendants" unilateral requisition for a date
and place of hearing filed on February 26, 1997 3 $300.00
Plaintiff"s motion for an interlocutory
injunction filed on April 30, 1997
(motion # 5) 7 $700.00
Plaintiff"s amended motion for an interlocutory
injunction filed on May 16, 1997
(motion # 6) 7 $700.00
Plaintiff"s motion for an interlocutory
injunction filed on May 28, 1997
(motion # 7) 7 $700.00
Plaintiff"s motion to file an expert report
filed on November 6, 1997
(motion # 8) 4 $400.00
6 Appearance on motion # 2 (1 hr.) 3 $300.00
Appearance on motion # 3 (1 hr.) 3 $300.00
Appearance on motion # 4 (1 hr.) 3 $300.00
Appearance on unilateral requisition,
13/2/97 (1 hr.) 3 $300.00
Appearance on unilateral requisition,
26/2/97 (1 hr.) 3 $300.00
Appearance on motion # 5 (1.5 hrs.) 3 $450.00
Appearance on motion # 6,
22/5 and 10/6/97 (4.5 hrs.) 3 $1350.00
Appearance on motion # 7 (2 hrs.) 3 $600.00
8 Preparation for examinations of:
-Jean Robillard (1995) 5 $500.00
-Carlos Franceschinis 5 $500.00
-André St-Germain (21/3/96) 5 $500.00
-André St-Germain (28/2/96) 5 $500.00
-André St-Germain (5/6/97) 5 $500.00
-Ms. Lassonde (5/6/97) 5 $500.00
-Jean Robillard (1997) 5 $500.00
-Armand Rainville (7/3/96) 5 $500.00
-Armand Rainville (5/6/97) 5 $500.00
9 Attending on examinations
-Jean Robillard (1995) (1.5 hrs.) 3 $450.00
-Carlos Franceschinis (2.0 hrs.) 3 $600.00
-André St-Germain (21/3/96) (2.0 hrs.) 3 $600.00
-André St-Germain (28/2/96) (2.0 hrs.) 3 $600.00
-André St-Germain (5/6/97) (2.0 hrs.) 3 $600.00
-Ms. Lassonde (5/6/97) (0.5 hr.) 3 $150.00
-Jean Robillard (1997) (1.0 hr.) 3 $300.00
-Armand Rainville (7/3/96) (2.0 hrs.) 3 $600.00
-Armand Rainville (5/6/97) (2.0 hrs.) 3 $600.00
12 Preparation of:
-notice for production of documents 5 $500.00
-notice to admit facts 5 $500.00
13(a) Preparation for hearing 5 $500.00
13(b) Preparation for hearing after the first day 3 $300.00
13(b) Preparation for hearing after the second day 3 $300.00
14(a) Counsel fee per hour in Court
-24-11-97 / 6 hours
-25-11-97 / 6 hours
-26-11-97 / 4 hours
-(3 units/hr. x 16 hrs.) 48 $4800.00
25 Services after judgment 1 $100.00
26 Assessment of costs 6 $ 600.00
[3] The defendants are not disputing any of the items under Tariff B. Ms. Hamel objected however to allowing the maximum number of units. She submitted that the instant proceedings are routine in a patent file and that while there were numerous examinations, they did not take long. For his part, Mr. Elbaz stressed the complexity of the file and pointed out, inter alia, that the Court issued a judgment approximately sixty pages long after taking the decision under reserve for several months. In light of these arguments, the counsel fees claimed are allowed as follows.
[4] Fourteen (14) units are allowed under items 1 and 2 for filing the Statement of Claim and the Reply and defence to counterclaim. No costs are allowed for filing motion # 1. An assessment officer can only allow the costs of an interlocutory motion if the Court has ruled on the issue. This motion was withdrawn by the plaintiff.
[5] The costs of motions # 4, 6 and 7 are allowed as claimed under items 5 and 6. All of the other amounts claimed under these items are disallowed either because the motions were withdrawn by the parties or because the orders issued by the Court were silent on the issue of costs. Mr. Justice Nadon awarded the costs of motion # 3 to the defendants in his order dated April 24, 1995.
[6] I am allowing 3 units for preparation for each of the examinations, except for those of Ms. Lassonde and Jean Robillard (1997) for which I am allowing 2 units each, for a total of 25 units under item 8.
[7] Similarly, I believe that it is reasonable to award 2 units for each hour attending on all of the examinations, except for the examinations of Ms. Lassonde and Jean Robillard (1997) for which 1 unit/hour is allowed, for a total of 28.5 units under item 9.
[8] The maximum under Column III is allowed for preparation of each of the notices under item 12: 3 units for each notice.
[9] All of the amounts under items 13, 14 and 25 are accepted as claimed. I believe that 4 units are sufficient for the assessment of costs, as the hearing of the submissions took about fifteen minutes.
[10] Considering the above, counsel fees for the plaintiff come to $18,000.
DISBURSEMENTS
The plaintiff"s disbursements in the instant case total $ 8,351.14 for the following expenses:
Under Tariff A $ 100.00
Service 1,051.44
Reporter 1,494.29
Experts 4,609.48
Photocopies 1,095.93
On the basis of the evidence presented at the hearing, all of the disbursements are allowed. I do not accept Ms. Hamel"s objection concerning some of the costs of service. All of the costs of service were incurred before the Court of Appeal ordered the stay.
The plaintiff"s bill of costs is allowed in the amount of $ 26,351.14. A certificate is hereby issued for this amount.
MICHELLE LAMY
MONTRÉAL, QUEBEC Michelle Lamy
THE 12th DAY OF AUGUST 1998 Assessment Officer
Certified true translation
M. Iveson
FEDERAL COURT
TRIAL DIVISION
Date: 19980812
Docket: T-309-95
Between:
AVANT-GARDE ENGINEERING (1994) INC.
Plaintiff
-and-
GESTION DE BREVETS FRACO LIMITÉE
-and-
LES PRODUITS FRACO LIMITÉE
Defendants
AND
COMMISSIONER OF PATENTS
Third Party
CERTIFICATE OF ASSESSMENT
FEDERAL COURT
TRIAL DIVISION
Date: 19980812
Docket: T-309-95
Between:
AVANT-GARDE ENGINEERING (1994) INC.
Plaintiff
-and-
GESTION DE BREVETS FRACO LIMITÉE
-and-
LES PRODUITS FRACO LIMITÉE
Defendants
AND
COMMISSIONER OF PATENTS
Third Party
ASSESSMENT OF COSTS - REASONS
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OR RECORD
COURT FILE NO.: T-309-95
BETWEEN:
| AVANT-GARDE ENGINEERING (1994) INC. |
Plaintiff
| -and- |
| GESTION DE BREVETS FRACO LIMITÉE |
-and-
LES PRODUITS FRACO LIMITÉE
| Defendants |
AND
COMMISSIONER OF PATENTS
Third Party
| PLACE OF ASSESSMENT: Montréal, Quebec |
| DATE OF ASSESSMENT: July 29, 1998 |
REASONS OF THE ASSESSING OFFICER, M. LAMY
DATE OF REASONS FOR ASSESSMENT: August 12, 1998
APPEARANCES:
| Armand J. Elbaz for the plaintiff |
| Nathalie Hamel for the defendants |
SOLICITORS OF RECORD:
DUBÉ, ELBAZ
| Montréal, Quebec for the plaintiff |
BRASSARD ROY GAGNON
| Longueuil, Quebec for the defendants |
| Department of Justice Canada for the third party |
Ottawa, Ontario
Date: 19980812
Docket: T-309-95
Between:
AVANT-GARDE ENGINEERING (1994) INC.
Plaintiff
-and-
GESTION DE BREVETS FRACO LIMITÉE
-and-
LES PRODUITS FRACO LIMITÉE
Defendants
AND
COMMISSIONER OF PATENTS
Third Party
-----------------------------------------------------------------------
CERTIFICATE OF ASSESSMENT
-----------------------------------------------------------------------
I hereby certify that the costs of the plaintiff in the instant case are assessed and allowed in the amount of $26,351.14.
____________________________
MONTRÉAL, QUEBEC MICHELLE LAMY
AUGUST 12, 1998 ASSESSMENT OFFICER