Date: 19980223
Docket: T-2101-97
IN THE MATTER OF ss. 7, 19, 20, 22 and 55
of the Trade-marks Act, R.S.C. 1985, Ch. T-13
BETWEEN:
PIZZA PIZZA LIMITED
Plaintiff
- and -
1072810 ONTARIO LIMITED carrying on business
as DR. SAUSAGE and BRATWURST HOUSE
and GERWALD HADERER
Defendants
ASSESSMENT OF COSTS - REASONS
G.M. SMITH,
ASSESSMENT OFFICER
[1] This action was commenced by Statement of Claim filed on September 25, 1997. On October 6, 1997, the Court granted the Plaintiff's application to restrain the Defendants from infringing the exclusive right of the Plaintiff under its registered trade-marks relating to the Pizza Pizza name. The costs of the motion were deferred. By Judgment dated November 24, 1997, the Court then ordered the Defendants permanently restrained from infringing the Plaintiff's trade-marks and further directed the Plaintiff entitled to its assessed costs.
[2] The Plaintiff filed its Bill of Costs on May 8, 1998 along with the supporting affidavit of Beverly C. Jusko sworn May 5, 1998. At the request of the Plaintiff, an Appointment issued on May 12, 1998 for the assessment to take place at Toronto on May 26, 1998. At the hearing, Ms. Susan M. Sack presented an Assessment Brief on behalf of the Plaintiff. Mr. Gerwald Haderer appeared on his own behalf.
[3] After hearing submissions from both parties, and explaining to Mr. Haderer the process for assessing costs, I indicated to counsel for the Plaintiff that, in view of the nature of this case and the factors set out in rule 400(3), I would allow 5 units under item 1 of the Assessable Services of Tariff B for preparation and filing of the originating documents, 4 units under item 5 for preparation of the Plaintiff's motion and 2 units under item 26 for the assessment. I also indicated that I would allow 1 unit under item 6 for appearance on the Plaintiff's motion but would take under consideration the number of hours claimed by the Plaintiff, which counsel amended from 3.2 hours to 4.2 hours at the assessment. On review of the Court record, however, with respect to appearance on the Plaintiff's motion, which indicates a total duration of only 6 minutes for all three appearances, I am only prepared to allow one hour.
[4] As I also explained at the assessment, I will allow the Plaintiff's disbursements for court fees ($150), process servers ($275), corporate searches ($40) and for service of the Bill of Costs ($94.59) entered at the assessment. The claim of $187.73 for photocopies, however, which counsel admitted were done in-house, will be refused for reasons similar to those I expressed recently in Taylor Made Golf Company, Inc. v. Sully Imports Ltd., unreported, Court file no. T-2637-96, dated October 23, 1997.
[5] Counsel was only able to guess at the per page photocopy rate and, in any event, could not substantiate at all the cost of this disbursement to the law firm. To allow this cost on the basis of the very thin evidence produced by the Plaintiff would place me in the untenable position of having to certify that the Defendants should be held accountable for an amount which would be arbitrary. I find support for my decision to refuse this disbursement in the unreported finding of this Court in Faulding (Canada) Inc. v. Pharmacia S.P.A., Court file no. T-421-97, dated November 4, 1997, where Mr. Justice McKeown recently stated:
| Notwithstanding the recent Rule changes which are intended to bring costs more in line with actual costs of litigation, I agree with the plaintiff that many of the disbursements are calculated on a scale more appropriate on a solicitor/client bill than on a party and party bill. For example, with respect to photocopying, as Teitelbaum, J. said in Diversified Products Corp. v. Tye-Sil Corp. (1990), 34 C.P.R. (3d) 267 (F.C.T.D.) at 276: |
| ... The item of photocopies is an allowable disbursement only if it is essential to the conduct of the action. Therefore, this is intended to reimburse a party for the actual out-of-pocket cost of the photocopy ... |
| The defendant provided me with no information on the actual out-of- pocket cost of the photocopying and I have allowed nothing in this respect. I am also unable to calculate the out-of-pocket cost of facsimile transmission charges. |
[6] In accordance with section 4 of Part I of Tariff B, the Chief Justice confirmed on April 1, 1998 that the unit value of the Tariff remains at $100. For the reasons stated above, I have therefore assessed the Plaintiff's Bill of Costs in the amounts of $1,200 for fees and $559.59 for disbursements. A Certificate of Assessment will issue in the total amount of $1,759.59.
"Gregory M. Smith"
Gregory M. Smith
Assessment Officer
Ottawa, Ontario
June 8, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
COURT FILE NO.: T-2101-97
IN THE MATTER OF ss. 7, 19, 20, 22 and 55
of the Trade-marks Act, R.S.C. 1985, Ch. T-13
BETWEEN:
| PIZZA PIZZA LIMITED |
Plaintiff
- and -
1072810 ONTARIO LIMITED
carrying on business as DR. SAUSAGE
and BRATWURST HOUSE
and GERWALD HADERER
Defendants
PLACE OF ASSESSMENT: Toronto, Ontario
DATE OF ASSESSMENT: May 26, 1998
ASSESSMENT OF COSTS - REASONS BY G. SMITH, ASSESSMENT OFFICER
DATE OF REASONS: June 8, 1998
APPEARANCES:
| Susan M. Sack for the Plaintiff |
Gerwald Haderer for the Defendant (himself)
No one appearing for the Defendants
SOLICITORS OF RECORD:
KESTENBERG, SIEGAL, LIPKUS
Barristers & Solicitors
Toronto, Ontario for the Plaintiff