BETWEEN:
Plaintiff
and
MARCEL MATIÈRE
Defendant
and
MARCEL MATIÈRE
BÉTON PROVINCIAL LTÉE
Plaintiffs by counterclaim
and
ASSESSMENT OF COSTS – REASONS
DIANE PERRIER – ASSESSMENT OFFICER
[1] This is an action for patent infringement, and a trial date had been set. The plaintiff served a notice of discontinuance on the defendant, Marcel Matière, and Marcel Matière served a notice of discontinuance on the defendant by counterclaim, Fortier 2000 Ltée, without costs. On July 20, 2005,the Court made an amended order removing Gowling Lafleur Henderson as solicitors of record for the plaintiff by counterclaim, Béton Provincial Ltée, and ordering that if the plaintiff by counterclaim did not retain new counsel, it would be deemed to have discontinued its counterclaim, with costs. On March 21, 2006, on a motion to review the assessment officer under section 414 of the Federal Courts Rules, Mr. Justice Blais ruled that the plaintiff by counterclaim, Béton Provincial Ltée, had discontinued its counterclaim as of August 12, 2005, and ordered the assessment officer to proceed with the assessment of the bill of costs in accordance with the amended order of July 20, 2005, with costs.
[2] On June 26, 2006, the plaintiff/defendant by counterclaim requested that the assessment of the bill of costs and the supplementary bill of costs proceed without personal appearance. We sent letters to the parties on July 14, 2006, requesting written representations. On August 7, 2006, we received a letter from counsel for Béton Provincial Ltée, plaintiff by counterclaim, stating that he would not be submitting written representations on the bills of costs. I am now ready to proceed with the assessment.
[3] The following fees are allowed as requested in the assessment of costs:
|
Items |
Assessable Services |
Units under column III |
|
2 |
Reply and defence to counterclaim |
7 |
|
8
|
Preparation for the examination for discovery of Maurice Matière |
5
|
|
7 |
Discovery of documents |
5 |
|
9 |
Attending on examination for discovery of Maurice Matière (March 13 and 14, 2002) first counsel 8 hours X 3 units per hour |
24 |
|
8 |
Preparation for the examination for discovery of a representative of Béton Provincial |
5 |
|
9 |
Attending on examination for discovery of the representative of Béton Provincial (March 15, 2002) first counsel 5 hours X 3 units per hour |
15 |
|
8 |
Preparation for the examination for discovery of Mr. Turcotte |
5 |
|
9 |
Attending on examination for discovery of Mr. Turcotte (March 19 and 20, 2002) March 19, 2002, first counsel: 7 hours X 3 units per hour March 20, 2002, first counsel 4 hours X 3 units per hour |
21
12 |
|
2 |
Preparation and filing of submissions under section 380 (October 10, 2002) |
7 |
|
3 |
Amended reply and defence to counterclaim (January 22, 2003) |
6 |
|
8 |
Preparation for examination of Marc Otis |
5 |
|
5 |
Preparation and filing of a record in response to the motion for particulars (No. 74) including supporting documents |
7 |
|
6 |
Appearance on the Motion for an Order for particulars with respect to paragraph 22 of the newly Amended Reply and Defence to the Counterclaim of the Plaintiff/Defendant by counterclaim (March 24, 2003), 1 hour X 3 units per hour |
3 |
|
8 |
Preparation for the examination of Mr. Turcotte |
5 |
|
8 |
Attending on examinations of Mr. Otis and Mr. Turcotte (October16, 2003) 7 hours X 3 units per hour |
21
|
|
10 |
Preparation for the pre-trial conference including memorandum
|
6 |
|
11 |
Attendance at pre-trial conference April 21, 2004, first counsel 2 hours X 3 units per hour |
6
|
|
10 |
Preparation for pre-trial conference May 6, 2005, by telephone |
6 |
|
11 |
Attendance at pre-trial conference by telephone 1 hour X 3 units per hour |
3 |
|
13 |
Preparation for trial |
5 |
|
25 |
Services after order of July 20, 2005 |
1 |
|
26 |
Assessment of costs |
4 |
Subtotal: 184 units X $120 = $22,080.00
GST and QST = $3,080. 16
Total fees = $25,160.16
Items 4, 5 and 6
[4] The following fees were not allowed: (item 4) motion to validate service including supporting documents and (item 6) appearance on the motion to validate service, because the order of Prothonotary Morneau dated May 7, 2001, is silent as to costs. The same applies to the motion for security for costs, including supporting documents and appearance on this motion, because the order of Prothonotary Morneau dated May 7, 2001, is silent as to costs. With respect to (item 5) the motion by the plaintiff to strike paragraphs from the defence and counterclaim and appearance on this motion, the order of Prothonotary Morneau dated September 5, 2001, dismissed the plaintiff’s motion with costs; accordingly, the plaintiff must pay the costs, not the defendant.
Item 3
[5] This concerns the plaintiff’s motion for particulars filed on July 30, 2001, which was dismissed with costs; accordingly, the defendant is entitled to these costs, not the plaintiff.
Items 1 and 6
[6] This concerns the preparation and filing of a notice of appeal of a decision of Prothonotary Richard Morneau, filed on September 17, 2001. On October 4, 2001, Mr. Justice Nadon dismissed the appeal, with costs to the defendant, not the plaintiff. Accordingly, the assessment officer cannot allow costs.
Items 5 and 6
[7] This concerns a motion by the plaintiff for determination of certain objections and undertakings, as well as appearance on this motion. The order of the Court dated December 2, 2002, is silent as to costs, and accordingly, items 5 and 6 cannot be allowed.
Items 5 and 6
[8] The fees regarding the motion to amend the response and defence to counterclaim, and appearance on this motion cannot be allowed, because the order of the Court dated January 22, 2003, awarded costs to the plaintiffs by counterclaim fixed at $350 against the plaintiff/defendant by counterclaim, Fortier 2000 Ltée. Accordingly, the assessment officer cannot allow them.
Items 5 and 6
[9] The fees for the preparation and filing of a motion for a determination of certain objections made at the examinations of Mr. Matière and Mr. Otis to direct them to provide documents, and the undertakings and appearance on this motion are not allowed, because the order of ¨Prothonotary Richard Morneau dated August 27, 2003, is silent as to costs.
Item 4
[10] The fees for the preparation and filing of a motion for an order changing the timetable set by Prothonotary Morneau in his order of August 27, 2003, cannot be allowed because on October 24, 2003, Mr. Morneau made an order that is silent as to costs.
Item 11
[11] The fees for attendance at the pre-trial conference on April 21, 2004, can only be allowed for one counsel because Tariff B makes no mention of a second counsel.
Item 1
[12] The fees with respect to the preparation and filing of a notice of motion to appeal a decision of the Prothonotary and appearance on the motion cannot be allowed, because the order of the Court dated July 17, 2004, states that costs in the amount of $500 will be payable to the defendant/plaintiff by counterclaim and not to the plaintiff/defendant by counterclaim. Accordingly, the assessment officer cannot allow them.
Item 26
[13] I am allowing 4 units for the assessment of costs, which appears reasonable to me in the circumstances.
Disbursements
[14] Disbursements in the amount of $12,635.40 are allowed. The units claimed for the cost of photocopies and binding were allowed at 50%, because the assessment officer cannot link the pages to a specific document, and there is no doubt that photocopies and faxes were made. For that reason, it seems reasonable to me to allow 50% of these costs. I allowed the amount of $139.18 for costs of service, because I was able to verify that the documents served related to an order of the Court that awarded costs.
[15] The bill of costs of the plaintiff/defendant by counterclaim is, therefore, assessed in the amount of $37,795.56 ($25,160.16 + $12,635.40).
[16] Regarding the supplementary bill of costs of the plaintiff/defendant by counterclaim, the following fees are allowed in the amount of $2,598.06 ($2,280 + GST and QST): item 5 (motion to review the assessment officer) 7 units, item 6 (attendance on motion for review of the assessment officer) 9 units, item 25 (services after judgment) 1 unit and item 26 (assessment of costs) 2 units. I did not allow item 27 for the presentation of the bill of costs, because there is nothing in the Tariff to authorize it. The same is true for appearance at the first presentation of the bill of costs; there is nothing in the Tariff to authorize it. I did not allow item 6, appearance by the articling student on the motion for review of the assessment officer’s decision, because this item has already been allowed for the first counsel. I did not allow item 13(a) for preparation for appearing on the motion, because the Tariff provides for this appearance in item 6, and the plaintiff already requested it.
[17] The disbursements for the supplementary bill of costs in the amount of $924.69 are allowed, because they were established in the affidavit of counsel Robert Brouillette and appear reasonable to me.
[18] The supplementary bill of costs of the plaintiff/defendant by counterclaim is therefore assessed in the amount of $3,522.75.
[19] The bill of costs and the supplementary bill of costs of the plaintiff/defendant by counterclaim are assessed in the amount of $41,318.31. A certificate of assessment will be issued in this amount.
_____________________
ASSESSMENT OFFICER
QUEBEC, QUEBEC
October 23, 2006
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-611-01
STYLE OF CAUSE: FORTIER 2000 LTÉE
Plaintiff
and
MARCEL MATIÈRE
Defendant
and
MARCEL MATIÈRE
BÉTON PROVINCIAL LTÉE
Plaintiffs by counterclaim
and
FORTIER 2000 LTÉE
Defendant by counterclaim
ASSESSMENT OF COSTS WITHOUT PERSONAL APPEARANCE
PLACE OF ASSESSMENT: Quebec, Quebec
REASONS BY DIANE PERRIER, ASSESSMENT OFFICER
SOLICITORS OF RECORD
|
Brouillette et Associés Montréal, Quebec
|
FOR THE PLAINTIFF/DEFENDANT BY COUNTERCLAIM
|
|
Deblois & Associés Ste-Foy,Quebec |
FOR THE PLAINTIFFS BY COUNTERCLAIM |