Date: 20001221
Docket: T-2997-90
BETWEEN:
MAXIM'S BAKERY LTD.
APPELLANT
and
MAXIM'S LIMITED
RESPONDENT
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
| [1] On November 12, 1998, the Court ordered that, "since the appeal has been rendered moot by the actions of the respondent, no Order on its merits is made; and the applicant shall have its costs of the appeal". The Appellant filed this bill of costs: |
| Tariff No. |
Taxable Service |
Units Sought |
Hours Claimed |
Unit Value |
Taxable Total |
| 1. |
Preparation and filing of originating documents, other than a Notice of Appeal in the Court of Appeal, and application records, for filing of Notice of Appeal in the Trial Division on 28 December 1990 |
7 |
- |
$100 |
$700 |
| 5. |
Preparing and filing of a contested motion for motion of August 31, 1998 |
7 |
- |
$100 |
$700 |
| 6. |
Appearance on a motion, per hour for motion of August 31, 1998 |
3 |
1 |
$100 |
$300 |
| 13(a). |
Counsel fee for preparation for hearing, including preparation and filing of four affidavits |
5 |
- |
$100 |
$500 |
| 14(a). |
Counsel fee for hearing, per hour in Court |
3 |
1 |
$100 |
$300 |
| 20. |
Requisition for Hearing |
1 |
- |
$100 |
$100 |
| 26. |
Assessment of costs |
6 |
- |
$100 |
$600 |
| 27. |
Such other services as may be allowed by the assessment officer or ordered by the Court, for Reply to Notice of Status Review filed 3 July 1998 |
7 |
- |
$100 |
$700 |
| SUB-TOTAL |
$3900 |
||||
| GST on fees |
$275 |
||||
| PST on fees |
$275 |
||||
| SUB-TOTAL Tariff B fees |
$4450 |
||||
| Costs award by Order of Hargrave, P. dated 7 June 1999 on uncontested motion to recover exhibits |
$200 |
||||
| TOTAL FEES |
$4650 |
| DISBURSEMENTS |
|
| Photocopy & Binding Facsimile Long Distance Telephone Postage Notice of Appeal filing fee Requisition for Hearing filing fee Taxes on Disbursements TOTAL DISBURSEMENTS TOTAL FEES AND DISBURSEMENTS |
$84.91 $130.50 $90.64 $5.00 $50.00 $50.00 $22.20 $433.25 $5083.25 |
| The time limits for the exchange of written materials have expired without the Respondent having filed anything in response. |
| [2] The materials advanced on behalf of the Appellant assert that the costs claimed for this litigation are modest because the entire proceeding was rendered moot by reason of the Respondent's withdrawal of the trade-mark application (the subject of the opposition proceedings before the Registrar of Trade-Marks). As well, the changing of the Appellant's solicitor of record resulted in certain records of expenses not being available for inclusion in the bill of costs. The Appellant asserted that, given the substantial effort needed to initiate and prepare for the appeal, the $5,083.25 claimed represents a "reasonable minimum amount allowable" on this assessment. The Appellant noted that the evidence discloses that the actual costs significantly exceeded those costs permissable under the Tariff. |
Assessment
| [3] The Federal Court Rules, 1998 do not contemplate a litigant, having proper notice of an assessment of costs, but failing to appear, benefiting by an assessment officer abdicating 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 Appellant's bill of costs and the supporting materials within those parameters. |
| [4] In the circumstances of this litigation, I will not interfere with the presentation of maximum values under Column III. However, some items warrant comment or intervention. The motion dated August 31, 1998 to extend various deadlines to cross-examine on affidavits and to perfect the record resulted in a brief appearance by the Appellant's counsel only. The Court ordered that "the motion having been rendered moot by actions of the respondent no order on its merits is made..." and that the Appellant receive costs in any event of the cause. It is arguable that the Appellant would have prepared as if for a contested motion and therefore would not have been restricted to the lower range of costs for preparation of an uncontested motion. I allow the item 5 and 6 costs for this motion as presented. |
| [5] The solicitor for the Appellant advised the Court several days before the scheduled hearing of the appeal that, the subject trade-mark application having been withdrawn, he would attend the hearing to address costs, but not to argue the appeal. The Appellant would have incurred some preparation costs for the merits of the appeal. Only counsel for the Appellant appeared on November 12, 1998. In the circumstances, I allow the item 13(a) and 14(a) fees as presented. |
| [6] I remove item 20 claimed at $100.00 for Requisition for Hearing. This item is listed in the Tariff as part of costs allowable in the Federal Court of Appeal. There is no corresponding item in the Trial Division. However, I approve item 27 for the Response to Notice of Status Review, which addressed in part the Requisition for Hearing, but only for 3 units and not the 7 units claimed which fall outside the prescribed range of 1-3 units. Finally, I allow the disbursements as presented. |
| [7] The Appellant's Bill of Costs, presented at $5,083.25, is assessed and allowed at $4,509.25. |
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, British Columbia, Thursday, this 21st day of December, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2997-90
STYLE OF CAUSE: MAXIM'S BAKERY LTD. v. MAXIM'S LIMITED
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS BY CHARLES E. STINSON
DATED: December 21, 2000
SOLICITOR FOR THE RECORD:
Paul Smith
Intellectual Property Law
Vancouver, B.C. FOR APPELLANT
Gowling, Strathy & Henderson
Ottawa, Ontario FOR RESPONDENT