Date: 20030219
Docket: T-1398-95
Neutral citation: 2003 FCT 200
BETWEEN:
LES INVENTIONS MORIN INC.
et
LES ÉQUIPEMENTS ARMAND MORIN INC.
Plaintiffs
and
GILBERT TECH INC.
Defendant
ASSESSMENT OF COSTS - REASONS
RICHARD LARABIE, ASSESSMENT OFFICER
[1] On December 10, 2002, counsel for the defendant filed a bill of costs for assessment pursuant to the Court's judgment rendered on February 21, 2000, dismissing the plaintiffs' action with costs.
[2] By consent of the parties an appointment was issued setting the assessment down for 10:30 a.m. on January 29, 2003. Serge Fournier and Josée Cavalancia were present at the assessment hearing for the plaintiffs, and Alain Dussault and Bob H. Sotiriadis for the defendant.
[3] I will deal at once with the items to which Mr. Fournier did not object, even though the maximum units were requested. Those items are 2, 5, 8, 13(a) and (b), 25 and 26, and they are allowed as requested.
[4] The items which were disputed by Mr. Fournier, with the exception of items 10 and 15, are items for which an appearance was requested on a motion, examinations and trial. His objection had nothing to do with the length, but with the maximum units requested. I will deal with these items, which are 6, 9, 11 and 14(a), after disposing of items 10 and 15.
[5] On item 10, on a value scale of 3 to 6 units, Mr. Dussault claimed 6 units for preparation of the pre-trial conference, including the memorandum.
[6] Mr. Fournier objected to this request, arguing that Mr. Sotiriadis did not have to prepare and did not even file a memorandum, according to him, Mr. Sotiriadis just came to receive confirmation of his mandate from his client.
[7] Mr. Sotiriadis appeared surprised and replied that, with Mr. Fournier, they both represented opposing parties in several other cases and there may have been a mistake on this point by Mr. Fournier. However, he noted that if a memorandum had not been filed, he was prepared to reduce his claim to 3 units.
[8] A verification of the record in fact confirmed that the defendant did not file a memorandum for the pre-trial conference. At the same time, I consider that Mr. Sotiriadis' presence at the pre-trial conference obviously required preparation and agree with his proposal that his claim be reduced to 3 units. The request of 6 units for item 10 will therefore be reduced to 3 units.
[9] On item 15, Mr. Dussault claimed 7 units for the preparation and filing of written arguments. This request must be dismissed, as nowhere in the record was I able to find any request or permission from the Court to file written arguments.
[10] I now return to the claim under item 6 of 19.5 units for Mr. Sotiriadis' appearance on the motion for an interlocutory injunction, which took 6.5 hours on September 30, 1996.
[11] As indicated earlier, Mr. Fournier did not object to the length of the hearing, he objected to the maximum units requested. He alleged that it was a simple case involving a mechanical and not chemical patent, as stated in the Court's decision, and he considered that a request of 1 unit per hour would suffice.
[12] Mr. Dussault replied inter alia that the reasons for claiming the maximum were based on the fact that the motion was not relevant and should never have been made. He further added that it was an important case for his client, as the result could have closed her business, and the potential damages were high. Additionally, he mentioned that the workload was considerable and there were examinations for the interlocutory application.
[13] Mr. Fournier replied that one should not be misled, nothing in the record indicated a complicated case or showed that there was a significant injunction.
[14] In reply to Mr. Dussault's argument that the maximum was claimed based on the relevance of the motion and it should never have been made, I consider that the Court decided otherwise, as the comments in its decision on the motion for an injunction were to the effect that [TRANSLATION] "the claim did not appear to be frivolous and vexatious prima facie".
[15] As for his argument on the importance of the proceeding for his client, since the damages could have been high, it cannot be accepted for there is abundant precedent to the effect that the importance and complexity of the points at issue should be considered from a legal standpoint, and not from a business or economic one.
[16] Certainly, this case law was considered by the Court in deciding whether it should allow costs under a higher column than column III, but I also consider that it applies in determining the number of units to be allowed within the value scale of a column.
[17] As to his comments regarding the significant workload and the fact that there were examinations, it should be borne in mind that Mr. Sotiriadis made a maximum claim of 7 units under item 5 for preparation of this motion, to which Mr. Fournier did not object.
[18] Further, Mr. Fournier appeared to consider certain aspects important or disputed, since he did not object to the maximum units claimed under several items.
[19] As the motion nevertheless took 6.5 hours, and in view of the comments listed above, the claim under item 6 will be reduced to 13 units, representing 2 units for each hour.
[20] For the claims made under items 9 and 11, as the parties have advised the undersigned that their comments were the same as those made for item 6, the claims will also be reduced to 2 units per hour for each of the claims made under those items.
[21] Under item 14(a), Mr. Dussault claimed 3 units for the entire trial (34 hours), or 102 units. As the abstract of hearing in the Court record only indicates that it took 29 hours, I will accordingly reduce the number of hours claimed.
[22] Mr. Fournier objected to the claim of the maximum number of units on the ground that this was a simple, mechanical patent, that there was an expert opinion for which there is an invoice that he will have to pay as part of the disbursements, and that consequently the maximum was not justified.
[23] Mr. Dussault replied that it was indeed a simple patent, but it was still a patent and a patent always involved complicated work. He again repeated that this case had significant consequences and the trial lasted five days, and that Mr. Sotiriadis was by himself at the trial.
[24] Mr. Sotiriadis added that (1) it was necessary to develop a theory of the case with the assistance of an expert, and referred to the Supreme Court's judgment in Whirlpool, dealing with "purposive construction"; (2) he won the case with a well-prepared expert witness, the latter did research on the industry and gave the Court the background; (3) expertise was necessary in order to win in this kind of case; and (4) he would like to be rewarded for a "job well done". Further, he added that an experienced judge had taken a year to make a decision and that the costs claimed were not high.
[25] Mr. Fournier replied that he was surprised by Mr. Sotiriadis' statements that patent cases were more complex, as in his opinion, immigration and tax cases were also complex. Mr. Fournier noted that Mr. Sotiriadis had laid great emphasis on the fact that he won with an expert, and he responded that he agreed with this, since he would have to pay the expert. Further, he added that he also agreed that the judgment was based on the expertise and that was why he disagreed with the maximum claim, and suggested the minimum.
[26] Firstly, in reply to Mr. Sotiriadis' comments that he would like to be rewarded for a "job well done", I have to answer that the assessment officer is not in a position to reward anyone and that his function is limited to the determination of assessable costs under the Rules and Tariffs, whether the costs incurred were necessary and reasonable, and this determination is made in accordance with the well-settled rule that the compensation is partial.
[27] As to the comments made by Messrs. Dussault and Sotiriadis that a patent always involved complicated work, I refer to the judgment in Unilever PLC v. Procter & Gamble Inc. and a passage from page 779 of the work by David Sgayias et al., Federal Court Practice, Toronto, Carswell, 2002, where it was held "infringement and validity are rather commonplace issues in patent litigation and do not justify an increase in counsel fees. It is the complexity of the legal issues raised by the litigation, rather than the complexity of the technology, that is to be considered".
[28] In view of the foregoing, and bearing in mind that Mr. Fournier did not challenge payment of the expert's bill, amounting to $8,067, or the maximum claims made under item 13(a) and (b) for preparation of the trial, I will reduce to 2 the number of units claimed for a 29-hour period appearing in the abstract of the hearing totalling 58 units.
Disbursements
[29] The claim in item 1.3(a) for taxes on fees allowed is awarded in the amount of $2,623.50. The claim for taxes on disbursements is dismissed, as I consider that only disbursed taxes should be reimbursed. At the same time, I will correct the invoices where possible, to include the taxes which were deducted by counsel.
[30] The claim in item 1.3(b) for $8,067 for the expert witness will be revised to $9,287.56 to include the taxes appearing in the invoices submitted.
[31] Mr. Dussault claimed $2,530.23 as travel expenses for the witnesses Gilbert, Taillon and Gaudreault.
[32] Mr. Fournier noted that he did not find the request reasonable, the amount was too high and it was not in keeping with the spirit of the Rules. In his submission, a claim in the amount of $1,200 to $1,300 would be more reasonable.
[33] Mr. Sotiriadis, for his part, stated that his claim was more than reasonable. The amount included the costs of an air ticket from Saguenay, car transport for another witness and all the travel expenses for three persons, on the interlocutory injunction, and the trial which lasted five days.
[34] I consider that the claim of $2,530.23 was not unreasonable, even if we were not given all the invoices, and although I consider that the travel expenses for the expert witness Gaudreault were included in his bill, as it represents all the expenses for two people from Roberval for the preparation and attendance at a motion for an injunction and a trial lasting five days. This amount will accordingly be awarded. At the same time, the amount will not be revised for taxes as they are already included in certain invoices.
[35] The claim of $2,592 for photocopying was revised by consent to $1,500.
[36] The sum of $294.85 claimed for taxis will be dismissed, as these are regarded as internal operating expenses. The claim of $83 for the expert witness' train travel will also be dismissed for the same reasons given above on the expert's bill.
[37] The long distance and fax costs for correspondence with the client in Roberval are awarded.
[38] The costs of $120.70 for service of notices are also awarded.
[39] The claim of $645.50 representing costs to the agent was amended by consent to $111.
[40] All other costs will be awarded as requested, except for the claim for Court Reporting costs, which will be revised to $2,191.08 to include taxes.
[41] The defendant's costs are assessed and allowed in the amount of $17,490 for fees and $19,459.52 for disbursements. A certificate is issued in the amount of $36,949.52.
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"Richard Larabie"
Assessment Officer |
Montréal, Quebec
February 19, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
COURT FILE No.: T-1398-95
Between: LES INVENTIONS MORIN INC.
et
LES ÉQUIPEMENTS ARMAND MORIN INC.
and
GILBERT TECH INC.
PLACE OF ASSESSMENT: Montréal, Quebec
DATE OF ASSESSMENT: January 29, 2003
REASONS BY: RICHARD LARABIE, ASSESSMENT OFFICER
DATE OF REASONS: February 19, 2003
APPEARANCES:
Serge Fournier for the plaintiffs
Alain Dussault for the defendant
SOLICITORS OF RECORD:
Brouillette, Charpentier, Fournier for the plaintiffs
Montréal, Quebec