Date: 20000131
Docket: T-1329-93
BETWEEN:
JIM SAX
Plaintiff
- and -
KEN CHOMYN AND
VIDEO - ONE SYSTEMS LIMITED
Defendants
ASSESSMENT REASONS
P. Pace
Assessment Officer
[1] This is an assessment of the defendants" Bill of Costs. Before dealing with the Bill, some background information regarding this litigation would be helpful.
[2] This is an action by way of Statement of Claim, filed on May 20, 1993. The claim seeks an Order expunging entries in the Patent Office relating to the patent application of the defendants for protection of a colour correcting system for flourescent lighting.
[3] In July 1993, the defendants sought, and were granted, an Order setting aside the service of the Statement of Claim and directing the plaintiff to pay the sum of $1,500 into Court to answer the defendants" costs of this action. On August 25, 1993 the sum of $1,500 was in fact paid into Court.
[4] On September 16, 1994, the plaintiff moved, in writing pursuant to the then Rule 324, for an order striking out the Statement of Defence and for summary judgment in accordance with Rule 341(a) for failure by the defendants to provide reply undertakings on examination for discovery of the defendants. On October 20, 1994, counsel for the defendants advised the Registry that the defendants had assigned all their interest in the subject patents to a company called Spectracom Technologies Corporation and that Spectracom had agreed to be responsible for the continued conduct of this litigation. They further advised that the solicitors representing Spectracom was the law firm of Cassels, Brock and Blackwell of Toronto.
[5] By letter to the Registry, counsel for the plaintiff adjourned its motion sine die. However, on February 20, 1994, plaintiff"s counsel advised the Registry that they wished to proceed with this motion to strike and for judgment.
[6] The plaintiff's motion came on before Prothonotary Hargraves who granted the defendants 30 days to provide replies to undertakings and adjourned the plaintiff"s motion, as it related to the request for judgment, for 30 days and with conditions.
[7] On June 12, 1998, counsel advised that the plaintiff would not be proceeding further with his motion under Rule 324. The Court issued a Notice of Status Review on July 30, 1998 requiring the plaintiff to show cause why the action should not be dismissed for delay. And on March 15, 1999, the Honourable Madame Justice Reed dismissed the action on the grounds that the plaintiff failed to demonstrate why the matter should not be dismissed for delay. No reference as to costs was included in this Order.
[8] On April 15, 1999, the defendants requested a hearing before Madame Justice Reed for an Order that directions be given to the Assessment Officer respecting the amount of costs to be paid to the defendants. The Court directed that the motion should be heard via teleconference on June 10, 1999. And on June 11, 1999 her Ladyship rendered the following Order:
| The defendants shall recover their costs from the plaintiff, and the amount of $1500.00 paid into Court by the plaintiff shall be applied for that purpose, on motion by the defendants after the amount of their costs have been determined. The costs of the present motion shall also be covered by the defendants from the plaintiff. |
[9] The Court expressed in its reasons for order that it was not a usual practice to award costs when the dismissal of a claim was the result of the Court"s own initiative. Having found counsel"s argument "compelling", however, the Court decided to exercise its discretion of costs in favour of the defendants.
[10] On October 22, 1999, the defendants requested, and were granted, an appointment for this assessment to proceed on January 6, 2000 by way of a teleconference. Ms. Michelle A. Wright represented the defendants and Mr. Marvin Henderson represented the plaintiff.
[11] At the commencement of the assessment, I inquired if there was any agreement on items in the Bill of Costs. Mr. Henderson indicated he did not object to the items being requested but only the number of units claimed under each item. I therefore approached this assessment as follows.
[12] Discovery and Examinations - 5 units were claimed for Documentary Discovery (Item # 7 in Tariff). Ms. Wright"s submission on this item was that this matter involved complex issues. It was a cumbersome process to pull and review the large number of documents involved. This matter was further complicated by the fact that her clients were not located in Ontario. Mr. Henderson responded that, given the early stage of these proceedings, it was not a difficult task to collect the documentation because it was not particularly voluminous. Having reviewed the Court record and having considered the criteria set out under rule 400(3), I will allow three (3) units for this item.
[13] Preparation for examination (Item #8 Tariff) - five (5) units claimed. Defendants' counsel submitted that Ms. Thorburn, a junior lawyer, was assigned to this matter and did most of the preparatory work, supervised by Mr. Monteleone. This was efficient use of legal time, she argued. Furthermore, complex matters were involved. The examination for discovery had to be conducted with the knowledge of a pending motion for summary Judgment. A high number of hours were therefore required to ensure every relevant area was covered and a high number of units should now be allowed.
[14] Mr. Henderson"s position on this point was that this litigation was not progressing at great speed and that the application for summary judgment was necessary to prompt the defendants into moving the litigation forward.
[15] Tariff Item No. 8 does not contemplate an award of units multiplied by the number of hours expended for this service. Only a set number of units, between 2 and 5, can be assessed. I allow three (3) units for this item.
[16] Attendance on Examinations - five (5) units are claimed for travel by counsel to attend examinations. Ms. Wright"s contention was that some allowance for travel over and above the allowance for attendance should be given. Mr. Henderson conceded that counsel had to travel from Toronto to Saskatchewan, but argued the amount to be assessed should not be at the high end of the Tariff. He further contended that any litigation involves some element of travel and suggested that only one (1) unit would be appropriate in the circumstances of this case.
[17] Having regard to Smerchanski v. M.N.R [1979] 1.F.C. 801 (C.A), I am of the view, at least in the circumstances of the present case, that no units should be allowed for this item. The Court in Smerchanski made the following comments:
| Party and Party costs are not intended to constitute full compensation, particularly where a party has chosen to instruct counsel whose base of operation is elsewhere than the appropriate place for hearing the matter. |
The fact that the defendants here chose to assign their rights to a corporation represented by Toronto counsel should not burden the plaintiff with having to pay for that choice, notwithstanding, in my view, the outcome of the litigation. I further note that the requisite discretion of the Court as stipulated in item 24 of the Tariff is absent here and I am therefore without authority in any event to grant this claim.
[18] Conducting of Examinations of Plaintiff - three (3) units are claimed under Tariff Item 9. I will allow 2 units for this item.
[19] Summary Judgment Motion and Motion for answers to Undertakings and Refusals - seven (7) units are claimed under Tariff item 5. No award of costs associated with this motion appears on the Court record. Having regard to the decision on taxation of costs in the matter of Enterprises Blanchet Ltée v. Canada [1989] 2. F.C. D-43, I therefore refuse this claim:
| where the Order following an Interlocutory Motion in silent as to costs, no costs can be allowed upon taxation of the costs of the action |
[20] Motion for Order that the Defendants costs be assessed - seven (7) units claimed under Tariff items 5 and 6. Ms. Wright submitted that, considering this motion was heard by teleconference, two (2) units would be acceptable under Tariff Item 6 for attendance. However, preparation was required, notwithstanding that the action was dismissed, which was again allocated to junior personnel to minimize costs. Mr. Henderson noted that the hearing only took forty-five (45) minutes and suggested that this item should be allowed at the minimum.
[21] The Court record shows that this matter, by way of teleconference, took approximately ten minutes. I will allow three (3) units for preparation under Tariff Item 5 and 1 unit for one hour of appearance under Tariff Item 6.
[22] Preparation for Assessment of Costs - six (6) units claimed. Ms. Wright submitted that some allowance should be made under this item because the accounts are quite old and were required to be pulled from storage to prepare the Bill of Costs. Mr. Henderson responded that this is normal procedure whether you have your accounts in storage or not. More points should not be awarded because it took longer to retrieve the relevant records.
[23] I agree with Mr. Henderson on this point. Defendants" counsel chose to place these records in storage and the burden of any resulting costs to retrieve them should not be placed on the plaintiff. I allow two (2) units under this item.
[24] Disbursements - Mr. Henderson raised no objection with respect to the disbursements claimed. Having regard to the Assessment of Costs Record provided by the defendants", I have therefore allowed them in full.
[25] In summary, I have assessed the defendants' Bill of Costs in the amounts of $4,046.40 for fees and disbursements, plus $185.25 for G.S.T.. A Certificate of Assessment will issue in the total amount of $4,231.65.
| P. Pace |
| Assessment Officer |
Toronto, Ontario
January 31, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: T-1329-93
JIM SAX
Plaintiff
- and -
KEN CHOMYN AND
VIDEO - ONE SYSTEMS LIMITED
Defendants
DATE OF ASSESSMENT: January 6, 2000
PLACE OF ASSESSMENT: Toronto, Ontario
REASONS BY: P. Pace, Assessment Officer
DATE OF REASONS: January 31, 2000
APPEARANCES:
Marvin Henderson for the Plaintiff
Michelle A. Wright for the Defendants
SOLICITORS OF RECORD:
Cassels Brock & Blackwell
Barristers & Solicitors
40 King Street West
Scotia Plaza, Suite 2100
Toronto, ON M5H 3C2 for the Plaintiff
Henderson Campbell
Barristers & Solicitors
202 - 135 21stStreet East
Saskatoon, Saskatchewan
S7K 0B4 for the Defendants