Date: 19981207
Docket: A-332-98
| BETWEEN: |
GESTION DE BREVETS FRACO LIMITÉE
-and-
LES PRODUITS FRACO LIMITÉE
Appellants
-and-
AVANT-GARDE ENGINEERING (1994) INC.
Respondent
- and -
COMMISSIONER OF PATENTS
Third Party
ASSESSMENT OF COSTS - REASONS
MICHELLE LAMY, ASSESSMENT OFFICER:
[1] On September 29, 1998, the Court of Appeal allowed the instant appeal with costs both before this Court and at first instance and set aside the judgment of the Trial Division.
[2] On November 23, Nathalie Hamel for the appellants and Julie Parent for the respondent were present for the assessment of costs.
COUNSEL FEES
[3] In its bill of costs, the appellants claim the following counsel fees under Tariff B for a total of $5,500:
| Item Assessable Service Column III/Units Amount |
Claimed
17 Preparation, filing and service of notice1 $100.00
of appeal
18 Preparation of appeal book1 $100.00
19 Memorandum of fact and law7 $700.00
21(a) Appellant"s motion for a stay (motion no. 1) 3 $300.00
21(a) Respondent"s motion to file new evidence 2 $200.00
(motion no. 2)
21(b) Hearing of motion no. 1 (2 hours)4 $800.00
21(b) Hearing of motion no. 2 (0.5 hours)2 $100.00
22(a) Hearing of appeal (6 hours)3 $1,800.00
24 Travel by counsel to attend the hearing5 $500.00
26 Assessment of costs6 $600.00
27 Preparation of tender of payment and payment
into Court Rule 419 [sic]3 $300.00
[4] After taking into consideration the submissions of the parties and after reviewing the proceedings on file, the appellants" counsel fees are allowed as follows:
- The amounts claimed under items 17, 18, 19 and 22(a) are allowed as claimed as they were justified in the instant case.
- The number of units claimed for the preparation and hearing of motion no. 1 is accepted as claimed under items 21(a) and (b). As the Court awarded no costs in its order dated September 29, 1998 concerning motion no. 2, the amounts claimed under item 21 for this motion are denied. As the hearing of motion no. 1 lasted one hour, the appellants are entitled to the amount of $400.00.
- In order to allow counsel fees to a party under item 24, they must be specified in the order of the Court. As this is not the case, no amount is allowed under this item.
- The appellants were already compensated under item 26 in the Trial Division file. For the reasons set out in file T-309-95, no costs are allowed in the instant file.
- As the appellants were ordered to pay into Court on the 1st of each month an amount equal to 5% of the gross revenue of the previous month from the sale and rental of products constituting an infringement of the respondent"s patent, the amount claimed under item 27 is allowed.
[5] The appellants" counsel fees are set at $3,700.
DISBURSEMENTS
[6] None of the appellant"s disbursements at the Court of Appeal were disputed:
Tariff A $ 50.00
Service $ 125.46
Reporter $ 76.30
Preparation of the memorandum $ 2,405.70
Photocopies $ 236.10
Total $2,893.56
[7] On the basis of the evidence presented by counsel at the hearing, I am satisfied that the disbursements which total $2,893.56 should be allowed in their entirety. The appellant"s costs are accordingly assessed and allowed in the amount of $6,593.56. A certificate is hereby issued for this amount.
MICHELLE LAMY
MICHELLE LAMY
ASSESSMENT OFFICER
MONTRÉAL, QUEBEC
December 7, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 19981207
Docket: A-332-98
Between:
GESTION DE BREVETS FRACO LIMITÉE
-and-
LES PRODUITS FRACO LIMITÉE
Appellants
-and-
AVANT-GARDE ENGINEERING (1994) INC.
Respondent
-and-
COMMISSIONER OF PATENTS
Third Party
ASSESSMENT OF COSTS - REASONS
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-332-98
STYLE OF CAUSE:
| GESTION DE BREVETS FRACO LIMITÉE |
-and-
LES PRODUITS FRACO LIMITÉE
| Appellants |
-and-
AVANT-GARDE ENGINEERING (1994) INC.
Respondent
| -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:
| Nathalie Hamel for the appellants |
Julie Parent for the respondent
SOLICITORS OF RECORD:
BRASSARD ROY GAGNON for the appellants
Longueuil, Quebec
| DUBÉ, ELBAZ for the respondent |
Montréal, Quebec
DEPARTMENT OF JUSTICE CANADA for the third party
Ottawa, Ontario