Date: 20010911
Docket: T-2407-98
Neutral Citation: 2001 FCT 1013
BETWEEN:
SYNCHRONICS INCORPORATED
Plaintiff
- and -
SYNCHRONICS LTD., SYNCHRONICS,
Ian Brown and Marcus Leech
carrying on business as Synchronics
Defendants
ASSESSMENT OF COSTS - REASONS
Cathryn Taubman
Assessment Officer
[ 1 ] This is an assessment by way of written representations of the Plaintiff's costs pursuant to the Order of the Court dated the 28th day of March, 2001. It is pertinent to note that the Plaintiff is represented by counsel; and to this date, the Defendants Synchronics Ltd. and Synchronics remain unrepresented by legal counsel.
[ 2 ] This matter commenced by way of a Statement of Claim filed on December 21, 1998. The claim alleged trademark infringement by the Defendants resulting from their use of the trademark "SYNCHRONICS" and domain name "synchronics.com" . The Plaintiff sought a number of remedies including injunctive relief, damages, interest and costs of the action.
[ 3 ] On February 8, 1999, the Defendants filed a Notice of Motion in writing, seeking approval of the Court "under Rule 120 authorizing either of the human defendants to act for the Defendant "Synchronics" and secondly, an "order permitting all three Defendants to file a joint Statement of Defence and Counterclaim". Neither affidavits nor written submissions were filed in support of the motion. A copy of the Defence and Counterclaim was received by the Registry the same day. The Plaintiff's written representations pointed out the deficiencies of the Defendants' motion with respect to the absence of supporting documentation and addressed the provisions of Rule 120 of the Federal Court Rules, 1998. By Order dated the 23rd day of March, 1999, the Honourable Mr. Justice Teitelbaum ordered "in that the Defendants have failed to file an affidavit with their Notice of Motion, the application is denied with costs in the sum of $250.00 payable forthwith."
[ 4 ] On April 6, 1999, the Defendants filed a Notice of Motion with affidavits and written representations in support seeking an order of the Court reversing the Order of Teitelbaum, J. dated March 23, 1999. Neither of the affidavits had been signed by the Defendants, nor were they commissioned. Written representations of the Plaintiff, filed April 13, 1999, raised the issue of appropriateness of affidavits submitted by the Defendants in support of their motion; explained the concept of reconsideration by the Court; and reiterated views on the issue of Rule 120 and the representation of the Defendants. Subsequently, by order dated May 7, 1999, the Honourable Mr. Justice Teitelbaum dismissed the Defendants' motion for reconsideration and awarded costs to the Plaintiff.
[ 5 ] On the 13th day of April, 1999 the Plaintiff filed an ex parte motion for default judgment against the Defendants. The Registry received a letter from the Defendants dated April 19, 1999 indicating their objection to the ex parte disposition of the Plaintiff's motion. The Defendant requested the motion be considered only after resolution of the issue of representation. By a second order issued the 7th day of May, 1999, the Honourable Mr. Justice Teitelbaum, with respect to the Plaintiff's motion for default judgment, ordered: "the defendants, Synchronics Ltd. and Synchronics be allowed to retain the services of legal counsel within a maximum delay of 15 days of today's date, failing which judgment will be granted by default."
[ 6 ] On May 10, 1999 the Defendants filed a Notice of Appeal (A-300-99) from Mr. Justice Teitelbaum's orders dated March 23, 1999 and May 7, 1999. On June 15, 1999, the Federal Court of Appeal quashed the appeal and awarded costs to the Respondent. By way of a letter dated June 21, 1999, the Defendants sought a stay of proceedings until the Supreme Court of Canada addressed their application for leave to appeal. Upon the dismissal of the application by the Supreme Court of Canada, the Plaintiff again sought default judgment. On April 3, 2000, The Honourable Mr. Justice Teitelbaum ordered:
Upon the defendants, Synchronics Ltd. and Synchronics, failing to file a valid defence within the legal delays in that they have not retained the services of counsel to represent them notwithstanding my Order of 23-March-1999 and my order of 07-May-99; It is hereby ordered that the plaintiff's claim be allowed as against Synchronics Ltd. and Synchronics with costs.
[ 7 ] The Defendants filed a Notice of Appeal (A-219-00) of the Order of Teitelbaum, J. on April 4, 2000; and on June 19, 2000, the Federal Court of Appeal dismissed the Appeal with costs as the "Appellants have no intention of proceeding with this appeal". Further, on March 12, 2001, the Defendants filed a motion seeking an Order setting aside the order of Teitelbaum, J. of April 3, 2000. This motion was subsequently dismissed by The Honourable Mr. Justice Teitelbaum and costs in the sum of $1500.00 were assessed against Ian Brown and Marcus Leech. The order stated that there is no merit for the present application, the present application should never have been brought and that the Court has clearly stated that Ian Brown and Marcus Leech cannot represent the Defendants Synchronics Ltd. and Synchronics." I note that a further Notice of Appeal (A-225-01) was filed by the Defendants on April 9, 2001, appealing Justice Teitelbaum's order and reasons for order.
The Plaintiff's Position
[ 8 ] The Plaintiff noted that, prior to litigation in the Federal Court of Canada, the Plaintiff and Defendants pursued negotiations to settle the trademark infringement and domain name use dispute. No resolution was achieved. The Plaintiffs posit that the settlement discussions are relevant to determining costs in this proceeding.
[ 9 ] The Plaintiff submits that the Defendants (Synchronics Ltd. and Synchronics) are not represented by legal counsel and the Federal Court of Canada has denied requests for Ian Brown and Marcus Leech to represent Synchronics before the Court. For this reason, these gentlemen cannot file submissions on behalf of Synchronics and the Defendants' response should therefore not form part of the Record on Assessment. The Plaintiff further submits "the Defendants' Response was improperly filed and should not be considered by the Assessment Officer."
[ 10 ] The Plaintiff requests that costs be assessed "at the highest level in Column III of Tariff B, plus interest" (paragraph 28, Written Submissions in Reply regarding costs). It is the Plaintiff's position, as stated at paragraph 25 of Written Submissions in Reply:
The amount of work involved was proportional to the Defendants' refusal to comply with the Federal Court Rules, 1998. If the Defendants had retained legal counsel in accordance with Rule 120 and the Orders of this Court and the Supreme Court of Canada, much of the work for which the plaintiff now claims costs would not have been necessary and Synchronics would have had its/their chance to defend this action on its merits. It is unfortunate the Defendants have instead chosen to delay these proceedings by numerous motions, applications and appeals thereby increasing the cost of this action for the Court and for the Plaintiff.
In addition, the Plaintiff seeks an order stipulating the Defendants pay the costs resulting from this assessment within seven days of the date of assessment, failing which, the Defendants will be barred from commencing or continuing any further proceedings until the costs and disbursements have been paid.
The Defendants' Position
[ 11 ] In view of the Order of The Honourable Mr. Justice Teitelbaum of May 7, 1999 which gave the Defendants an opportunity to seek legal representation prior to default judgment being entered; and the Order of April 3, 2000 allowing default judgment against the Defendants, I cannot consider the Submissions made by Messrs. Ian Brown and Marcus Leech regarding the Bill of Costs, as they do not have any standing before the Court as representatives of Synchronics Ltd. and Synchronics.
[ 12 ] Notwithstanding the fact that I will not rely on those submissions, having reviewed them, it is clear to me that Messrs. Brown and Leech do not understand what the process of assessment involves. Indeed, the submissions reflect further attempts to argue the merits of their being permitted to represent the Defendants Synchronics Ltd. and Synchronics (for example, paragraph 27). This point has already been decided by the Court. In the absence of submissions, it is the Assessment Officer's role to remain impartial and not become an advocate for a party's interests.
Assessment
[ 13 ] The Bill of Costs in this matter was filed and served prior to the April 1st, 2001 change in the unit value of the Tariff so this assessment is based on the rate of $100 per unit. No reference was made in submissions by counsel for the Plaintiff with respect to this matter. A review of the assessable services and allowable disbursements follows. First, however, as noted above in paragraph [ 10 ], the Plaintiff seeks assessment of costs "at the highest level in Column III of Tariff B, plus interest." By way of clarification, interest is not within my purview as an Assessment Officer. (See Stinson, AO in Grant R. Wilson v. Her Majesty the Queen, April 13, 2000). Further, an order with respect to a specified time within which the Defendants must pay is beyond my authority as an assessment officer.
[ 14 ] With respect to Assessable Services:
Item No. 1: The Plaintiff seeks 7 units for preparation and filing the Statement of Claim. I am allowing 5 units in recognition of the complexity of this trademark infringement matter and of steps taken to resolve the dispute, albeit prior to commencing litigation.
Item No. 5: The Plaintiff seeks 7 units for the preparation and filing of materials and responses on the Defendants' motion for reconsideration (a contested motion). I am allowing 5 units to reflect the fact that the reason for the motion for reconsideration stemmed from the Defendants' lack of legal representation and the Plaintiff had to contend with deficiencies in documentation submitted to the Court by the Defendants. As noted above in the summary, the Court ordered costs payable to the plaintiff in that matter.
Item No. 5: The Plaintiff seeks 7 units for the preparation and filing of the ex parte motion for default judgment (a contested motion), including materials and responses. A central issue to this matter was the lack of legal representation of the Defendants Synchronics Ltd. and Synchronics. Despite time and forewarning by the Court that default judgment would issue against the Defendants, no legal representation was obtained. This contributed to a prolonged process for the Plaintiff and I therefore allow the maximum 7 units (see disposition of item 27 below).
Item No. 25: The Plaintiff seeks 1 unit for the preparation of the bill of costs. I am not allowing the unit claimed under this item, as typically that is included with appearance in Item No. 26 Assessment of Costs.
Item No. 26: The Plaintiff seeks 6 units for the Assessment of Costs. I am allowing 4 units for the preparation of the bill of costs, which is reflective of the relative simplicity of the process, services and disbursements involved in this matter.
Item No. 27: The Plaintiff seeks 3 units for the preparation of submissions to the Court dated:
July 13, 1999 ( letter requesting opportunity to make submissions to the Court regarding direction to hold file in abeyance and further to Order dated May 7, 1999 addressing Plaintiff's motion for default judgment); August 25, 1999 (letter requesting Court proceed with Order for default judgment); March 24, 2000 (letter forwarding copy of Supreme Court of Canada dismissal and again seeking default judgment); and March 30, 2000 (letter in reply to Defendants' letter contesting request for default judgment). As these letters are covered by Item 5: Preparation and filing of a contested motion, including materials and responses thereto, I am not allowing the 3 units claimed here.
[ 15] With respect to allowable disbursements, the Plaintiff's expense of $150.00 for filing the Statement of Claim will be allowed as submitted.
[ 16 ] The Bill of Costs of the Plaintiff, presented at $3250.00, is assessed and allowed in the amount of $2250.00.
"Cathryn Taubman"
Cathryn Taubman
Assessment Officer
Ottawa, Ontario
September 11, 2001