Date: 20021009
Docket: T-1350-00
Neutral citation: 2002 FCT 1051
Between:
FOCUS MANUFACTURE INC.
Plaintiff
and
AMER SPORTS CANADA INC.
BURTON CORPORATION
EXCURSION EXTRÊME INC.
FORUM SNOWBOARDS INC.
FOUR STAR DISTRIBUTION (CANADA) LTÉE
GASTREM (1993) INC.
K2 CORPORATION OF CANADA
LES AGENCES MARIO LABELLE INC.
MONARK SPORTS LTÉE
NUBILE DISTRIBUTION INC.
OPTION SNOWBOARDS INC.
SALOMON CANADA SPORTS LTÉE
SKIS DYNASTAR CANADA LTÉE
Defendants
ASSESSMENT OF COSTS - REASONS
MICHELLE LAMY, ASSESSMENT OFFICER
[1] On October 26, 2000, the plaintiff completely discontinued its action for infringement initiated on July 25, 2000. Pursuant to Rule 402 of the Federal Court Rules (1998), assessment of the costs of the defendants Excursion Extrême Inc., Monark Sports Ltée and Skis Dynastar Canada Ltée went forward on September 24, 2002, with Isabelle Pillet as counsel for the plaintiff and Pascal Lauzon representing the defendants.
[2] As no defence had been filed on October 26, 2000, the costs claimed by the defendants were limited to the disbursements incurred by them, namely:
Disbursements |
Amounts |
Photocopies |
$52.25 |
Long distance charges (telephone) |
$14.30 |
Travel costs |
$11.00 |
Fax communication costs |
$205.00 |
Costs for external legal opinion (European consultants on intellectual property) |
$11,099.32 |
Patent search costs |
$36.91 |
Extra-judicial fees of Brouillette, Charpentier, Fortin |
$29,937.51 |
Bailiffs' fees |
$20.70 |
Credit check |
$230.05 |
[3] The extra-judicial fees of counsel for the defendants, Brouillette, Charpentier, Fortin, amounting to $29,937.51 cannot be allowed since there is no order by the Court authorizing assessment of costs on a solicitor-client basis. Rule 407 states that unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B.
[4] The defendants' affidavit submitted in support of their memorandum mentions that the defendant Dynastar, a subsidiary of a French company, consulted its French experts on intellectual property to obtain an opinion on the infringement and validity of the plaintiff's patent. Between December 1, 1999, the date of the notification sent to the defendants, and the institution of the action, an exchange of correspondence ensued between counsel for the plaintiff and the intellectual property consultants Laurent & Charras. The fees of Laurent & Charras in the amount of $11,099.32 cannot be allowed as expert costs, since these expenses were actually incurred for professional services rendered in this case, in particular for legal advice and opinions. The plaintiff referred the Court to the rule stated in Crelinsten Fruit Co. v. Maritime Fruit Carriers Co. [1976] 2 F.C. 316 (T.D.), where it states:
Neither would it appear to be proper to [treat] learned counsel who are engaged as such by an attorney of record in an advisory capacity, who do not participate in the trial, in the same manner as expert witnesses and consider sums disbursed for these services as a disbursement proper to include in any party and party taxation of the bill of costs.
[5] The travel costs amounting to $11.00, namely a return trip from the offices of Brouillette, Charpentier, Fortin to the Federal Court, are not allowed as they were actually operating costs that are not usually recoverable in an assessment.
[6] Except for the bailiffs' fees incurred on September 6, 2000 ($6.90), the other claims are dismissed since the documents (letter and notice of discontinuance) could easily have been served by fax.
[7] The defendants' affidavit states that costs of $205.00 were billed to them for fax transmission, since counsel for the defendants are located in Montréal while the defendant Excursion Extrême Inc. is located in Beauport and the representatives for the co-defendant Skis Dynastar Canada Ltée are located in Bromont and in France. In these circumstances, I allow this expense in its entirety.
[8] The same applies to the costs of $230.05 for a credit check. It seems reasonable for a party against whom an action has been brought to want to make such a check.
[9] The charges for photocopies, long distance calls and research ($36.91) are allowed as such, as they were not disputed.
[10] The parties agreed to the awarding of four units under item 26 of Tariff B for the assessment of costs in an amount of $506.11 (4 units x $110/unit + taxes).
[11] In view of the foregoing, the defendants' costs resulting from this case are assessed and allowed in the amount of $1,051.52 and a certificate is issued for that amount.
"Michelle Lamy" Assessment officer |
MONTRÉAL, QUEBEC
October 9, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20021009
Docket: T-1350-00 BETWEEN:
FOCUS MANUFACTURE INC.
Plaintiff
and
AMER SPORTS CANADA INC. BURTON CORPORATION EXCURSION EXTRÊME INC. FORUM SNOWBOARDS INC. FOUR STAR DISTRIBUTION (CANADA) LTÉE GASTREM (1993) INC. K2 CORPORATION OF CANADA LES AGENCES MARIO LABELLE INC. MONARK SPORTS LTÉE NUBILE DISTRIBUTION INC. OPTION SNOWBOARDS INC. SALOMON CANADA SPORTS LTÉE SKIS DYNASTAR CANADA LTÉE
Defendants
ASSESSMENT OF COSTS - REASONS |
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
COURT FILE No.: T-1350-00
STYLE OF CAUSE: FOCUS MANUFACTURE INC.
Plaintiff
and
AMER SPORTS CANADA INC.
BURTON CORPORATION
EXCURSION EXTRÊME INC.
FORUM SNOWBOARDS INC.
FOUR STAR DISTRIBUTION (CANADA) LTÉE
GASTREM (1993) INC.
K2 CORPORATION OF CANADA
LES AGENCES MARIO LABELLE INC.
MONARK SPORTS LTÉE
NUBILE DISTRIBUTION INC.
OPTION SNOWBOARDS INC.
SALOMON CANADA SPORTS LTÉE
SKIS DYNASTAR CANADA LTÉE
Defendants
PLACE OF ASSESSMENT: Montréal, Quebec
DATE OF ASSESSMENT: September 24, 2002
REASONS BY: MICHELLE LAMY, ASSESSMENT OFFICER
DATE OF REASONS: October 9, 2002
APPEARANCES:
Isabelle Pillet for the plaintiff
Pascal Lauzon for the defendants Excursion Extrême Inc., Monark Sports Ltée and Skis Dynastar Canada Ltée
SOLICITORS OF RECORD:
De Man, Pilotte for the plaintiff
Montréal, Quebec
Brouillette, Charpentier, Fortin for the defendants Excursion Extrême Inc.,
Montréal, Quebec Monark Sports Ltée and Skis Dynastar Canada Ltée
Gowling, Lafleur, Henderson for the defendant K2 Corporation of Canada
Toronto, Ontario
Léger, Robic, Richard for the defendants Option Snowboards Inc. and
Montréal, Quebec Burton Corporation
Fasken, Martineau, DuMoulin for the defendant Salomon Canada Sports Ltée
Montréal, Quebec
Leduc, Leblanc for the defendants Les Agences Mario Labelle
Montréal, Quebec Inc. and Gastrem (1993) Inc.
MacBeth & Johnson for the defendant Amer Sports Canada Inc.
Toronto, Ontario
Smart & Biggar for the defendants Forum Snowboards Inc.,
Vancouver, British Columbia Nubile Distribution Inc. and Four Star Distribution Canada Ltée
Date: 20021009
Docket: T-1350-00
Between:
FOCUS MANUFACTURE INC.
Plaintiff
and
AMER SPORTS CANADA INC.
BURTON CORPORATION
EXCURSION EXTRÊME INC.
FORUM SNOWBOARDS INC.
FOUR STAR DISTRIBUTION (CANADA) LTÉE
GASTREM (1993) INC.
K2 CORPORATION OF CANADA
LES AGENCES MARIO LABELLE INC.
MONARK SPORTS LTÉE
NUBILE DISTRIBUTION INC.
OPTION SNOWBOARDS INC.
SALOMON CANADA SPORTS LTÉE
SKIS DYNASTAR CANADA LTÉE
Defendants
------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF ASSESSMENT OF COSTS
------------------------------------------------------------------------------------------------------------------
I hereby certify that the costs of the defendants Excursion Extrême Inc., Monark Sports Ltée and Skis Dynastar Canada Ltée in the instant case have been assessed and allowed in the
amount of $1,051.52.
MONTRÉAL, QUEBEC "Michelle Lamy"
October 9, 2002 Assessment officer
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20021009
Docket: T-1350-00 BETWEEN:
FOCUS MANUFACTURE INC.
Plaintiff
and
AMER SPORTS CANADA INC. BURTON CORPORATION EXCURSION EXTRÊME INC. FORUM SNOWBOARDS INC. FOUR STAR DISTRIBUTION (CANADA) LTÉE GASTREM (1993) INC. K2 CORPORATION OF CANADA LES AGENCES MARIO LABELLE INC. MONARK SPORTS LTÉE NUBILE DISTRIBUTION INC. OPTION SNOWBOARDS INC. SALOMON CANADA SPORTS LTÉE SKIS DYNASTAR CANADA LTÉE
Defendants
CERTIFICATE OF ASSESSMENT OF COSTS |