Date: 19981207
Docket: T-309-95
| BETWEEN: |
AVANT-GARDE ENGINEERING (1994) INC.
Plaintiff
- and -
GESTION DE BREVETS FRACO LIMITÉE
-and-
LES PRODUITS FRACO LIMTÉE
Defendants
-and-
COMMISSIONER OF PATENTS
Third Party
ASSESSMENT OF COSTS - REASONS
MICHELLE LAMY, ASSESSMENT OFFICER:
[1] This is a proceeding in which the plaintiff"s costs were assessed on July 29, 1998, although the decision of the Trial Judge had been appealed. On September 29, the Court of Appeal reversed that decision and awarded costs both on appeal and at first instance to the defendants, including costs of expert opinions.
[2] In light of this decision, Nathalie Hamel, representing the defendants, and Julie Parent, for the plaintiff, attended the assessment of the defendants" costs before me on November 23.
COUNSEL FEES
[3] In its bill of costs, the defendants claimed the following counsel fees, totalling $20,850, under Tariff B:
| Item |
Assessable Service |
Column III/Units |
Amount Claimed |
|||||||||
| 2 |
Preparation and filing of defence |
7 |
$ 700.00 |
|||||||||
| 5 |
Defendants" motion to dismiss action filed on February 24, 1995 (motion no. 1) |
6 |
$ 600.00 |
|||||||||
| Defendants" motion to add counterclaim filed on March 27, 1995 (motion no. 2) |
6 |
$ 600.00 |
||||||||||
| Plaintiff"s motion to dismiss the defence filed on July 3, 1996 (motion no. 3) |
6 |
$ 600.00 |
||||||||||
| Plaintiff"s motion for an interlocutory injunction filed on April 30, 1997 (motion no. 4) |
7 |
$ 700.00 |
||||||||||
| Plaintiff"s amended motion for an interlocutory injunction filed on May 16, 1997 (motion no. 5) |
7 |
$ 700.00 |
||||||||||
| Plaintiff"s motion for an interim injunction filed on May 28, 1997 (motion no. 6) |
7 |
$ 700.00 |
||||||||||
| 6 |
|
3 |
$ 300.00 |
|||||||||
|
3 |
$ 300.00 |
||||||||||
|
3 |
$ 300.00 |
||||||||||
|
3 |
$ 450.00 |
||||||||||
22/5 and 10/6/97 |
3 |
$ 1,350.00 |
||||||||||
|
3 |
$ 600.00 |
||||||||||
| 8 |
Preparation for examinations of: - Jean Robillard (1995) - Carlos Franceschinis - André St-Germain (21/3/96) - André St-Germain (28/2/96) - André St-Germain (5/6/97) - Ms. Lassonde (5/6/97) - Jean Robillard (1997) - Armand Rainville (7/3/96) - Armand Rainville (5/6/97) |
3 3 3 3 3 2 2 3 3 |
$ 300.00 $ 300.00 $ 300.00 $ 300.00 $ 300.00 $ 200.00 $ 200.00 $ 300.00 $ 300.00 |
|||||||||
| 9 |
Attending on examinations
|
2 2 2 2 2 1 1 2 2 |
$ 300.00 $ 400.00 $ 400.00 $ 400.00 $ 400.00 $ 50.00 $ 100.00 $ 400.00 $ 400.00 |
|||||||||
| 13(a) |
Preparation for motion no. 4 Preparation for motion no. 5 Preparation for motion no. 6 |
5 5 5 |
$ 500.00 $ 500.00 $ 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 |
|||||||||
| 13(b) |
Counsel fees 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 |
$ 4,800.00 |
|||||||||
| 25 |
Services after judgment |
1 |
$ 100.00 |
|||||||||
| 26 |
Assessment of costs |
1 |
$ 100.00 |
[4] The plaintiff is not disputing any of the items under Tariff B, as the amounts claimed in the instant bill of costs are identical to those granted to the plaintiff last July. For this reason, the amounts claimed under items 2, 8, 9, 13(a) (preparation for hearing only), 13(b), 14(a) and 25 are allowed as claimed. Under items 5 and 6, costs for motions nos. 2, 3, 5 and 6 are allowed as claimed. The amounts claimed under these items for motions nos. 1 and 4 are disallowed because the orders made by the Court on these motions were silent on the issue of costs. The amounts claimed under item 13(a) for preparation for motions nos. 4, 5 and 6 are disallowed because the defendants are already compensated for their work under item 5 of the Tariff.
[5] As the costs on appeal and at first instance were assessed at the same time, only one bill of costs was prepared, and few of the items were disputed, 2 units are allowed for the assessment of costs incurred in the two proceedings.
[6] Considering the above, counsel fees for the defendants total $ 17,400.
DISBURSEMENTS
[7] The defendants" disbursements in the instant case are $ 7,500.76:
| Tariff A Service Reporter Research Experts Photocopies |
$ 100.00 $ 54.67 $ 484.15 $ 220.00 $ 6,615.34 $ 26.60 |
[8] On the basis of the evidence presented at the hearing, all of the disbursements, including those of the experts, are allowed in accordance with the decision of the Court of Appeal, as well as the costs of research, which are allowable expenses.
[9] The defendants" bill of costs is allowed in the amount of $ 24,900.76. A certificate is hereby issued for this amount.
MICHELLE LAMY
ASSESSMENT OFFICER
MONTRÉAL, QUEBEC
December 7, 1998
Certified true translation
M. Iveson
| FEDERAL COURT OF CANADA |
| TRIAL DIVISION |
| Date: 19981207 |
| 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 |
| TAXATION OF COSTS - REASONS |
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19981207
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 OF COSTS
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-309-95
STYLE OF CAUSE:
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: November 23, 1998 |
ASSESSMENT OF COSTS - REASONS OF M. LAMY, ASSESSMENT OFFICER
| DATE OF REASONS: December 7, 1998 |
APPEARANCES:
| Julie Parent for the plaintiff |
| Nathalie Hamel for the defendants |
SOLICITORS OF RECORD:
| DUBÉ, ELBAZ for the plaintiff |
Montréal, Quebec
| BRASSARD ROY GAGNON for the defendants |
Longueuil, Quebec
| DEPARTMENT OF JUSTICE CANADA for the third party |
Ottawa, Ontario