Date: 19980114
Docket: T-1132-97
BETWEEN:
JOCKEY INTERNATIONAL INC.
Plaintiff
- and -
LES PANTALONS PACIFIC CIE INC. (a.k.a. PACIFIC PANTS CO. INC.),
J.P. BRIÈRE LTÉE (c-o-b as CRÉATION BERNARD B.), ANNE LIEBMAN,
SHELDON LIEBMAN AND BERNARD BRIÈRE
Defendants
TAXATION OF COSTS - REASONS
G.M. SMITH, TAXING OFFICER
[1] This is a taxation on a party-and-party basis of the plaintiff's costs of this action as against the defendants LES PANTALONS PACIFIC CIE INC. (a.k.a. PACIFIC PANTS CO. INC.), ANNE LIEBMAN and SHELDON LIEBMAN for infringment of the Trade Mark rights of Jockey International, Inc.
[2] These proceedings were commenced by way of a Statement of Claim filed on May 29, 1997. On October 2, 1997, Judgment in default of defence issued against the said defendants. In addition to an award of damages and interest, the plaintiff was also awarded its costs of this action.
[3] On October 30, 1997 the plaintiff filed its Bill of Costs which was contained in the affidavit of Jamie Bocking sworn the preceding day. The plaintiff requested the taxation proceed by way of written representations, without the personal appearance of the parties. As attested in the affidavit of Renata Falcone, also sworn October 29, 1997 and filed October 30, 1997, the Bill of Costs and supporting documentation were served on the defendants on October 14, 1997.
[4] On December 9, 1997 I caused instructions to be issued to the parties giving the defendants until December 23, 1997 to file written representations in reply to the plaintiff's Bill of Costs. The plaintiff was given until January 9, 1998 to file written representations further to any made by the defendants. In the eventuality, no representations were received from the defendants and I therefore proceeded to assess the plaintiff's costs on the basis of the documentation which then appeared on the Court record.
[5] The plaintiff claims for services relating to items 1, 5 and 6 of Tariff B, Part II, Column III. The Bill of Costs itself distinguishes each of those items in connection with the individuals from the plaintiff's firm who actually expended time on those services. For example, the item for "Drafting and filing of Statement of Claim" identifies 4 units - Jeffrey Brown and 3 units - Mirko Bibic. Another item to "Prepare Motion to Court for default Judgment" identifies 5 units - Jeffrey Brown and 2 units - Jamie Bocking (Student-at-Law). I do not take this to mean that the plaintiff is claiming for first and second counsel as, for example, might be allowable under items 14 and 22 of the Tariff if so directed by the Court, which was not the case here. Nor do I interpret the plaintiff's Bill to be a claim necessarily for the services of a law student. Rather, I interpret the identification of individual names in the Bill as simply an intention to justify the maximum number of units allowable for those items in Tariff B. I have therefore allowed the amounts requested for a total of 15 units, multiplied by the unit value of $100 and arriving at a total amount of $1,500 for services.
[6] Disbursements are claimed in the amounts of $105.43 for process services and $50.00 for filing fees. Invoices appended to the Bocking affidavit fully support the amount for process services and the Court record itself proves the amount expended for filing fees. They are allowed.
[7] Telephone, telecopier charges and photocopying expenses are also claimed in the Bill of Costs. These expenditures are listed in an excerpt from the firm's disbursement ledger which was appended to the Bocking affidavit. I note however that the ledger does not include charges for binding. It appears that these are in-house expenditures, as opposed to out-of-pocket disbursements which would normally be supported by invoices or vouchers. The items for photocopying, binding and telecopier expenses are generally referred to in the affidavit as relating to "all pleadings and evidence filed by the Plaintiff". But no further detail is provided as to, for example, the number of copies that were made and the actual or estimated cost incurred by the firm for making the calls and copies.
[8] As to photocopying, binding and telecopier expenses, the plaintiff submits simply that they were necessarily incurred in the preparation of documents for these proceedings, being all pleadings and evidence filed by the plaintiff. No other information is provided, however, as to the cost of these items. I therefore have no manner by which to determine whether 25" was charged or $1.00 per page. Nor has the plaintiff identified what portion of the amount claimed is for binding and what amount is for photocopies. I therefore have no way of determining whether the amounts being claimed are in any way reasonable.
[9] The circumstances in the present taxation are very similar to those I recently decided in Taylor Made Golf Company, Inc. v. Sully Imports Ltd., unreported, Court file no. T-2637-96, dated October 23, 1997. As I expressed in reference to an earlier taxation in F-C Research Institute Ltd. v. H.M.Q., also unreported, Court file no. T-2338-87, September 21, 1995, the simple delineation of expenditures generally described in a Bill and supported by a scant statement alone that they were reasonable and necessary does not provide sufficient information to discharge the responsibility of being satisfied that the costs claimed were essential to the conduct of the proceedings, that they were prudently incurred, or that the quantity or rate applied, as the case may be, was reasonable in the circumstances. Unless the parties agree, the party whose bill is being assessed must prove the disbursement. No consent has been brought to my attention and the information provided by the plaintiff as described above falls well short of establishing any basis for even guessing at an amount for which, in a party-and-party context, the defendants should be held accountable.
[10] The words used in section 3 of Part III of Tariff B to the Rules, "Such other disbursements as were reasonably necessary in the proceeding", must surely have been intended to require something other than the simple production of a list. In the present case, I am unable to determine in any way, and then certify, that the expenditures claimed for telephone, photocopying, telecopying and binding were reasonable and necessary. They are therefore taxed off.
[11] The plaintiff's Bill of Costs is assessed in the total amount of $1,655.43.
"Gregory M. Smith"
Gregory M. Smith
Taxing Officer
Ottawa, Ontario
January 14, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
COURT FILE NO.: T-1132-97
BETWEEN:
| JOCKEY INTERNATIONAL INC. |
Plaintiff
| - and - |
| LES PANTALONS PACIFIC CIE INC. (a.k.a. PACIFIC PANTS CO. INC.), J.P. BRIÈRE LTÉE (c-o-b as CRÉATION BERNARD B.), ANNE LIEBMAN, SHELDON LIEBMAN AND BERNARD BRIÈRE |
| Defendants |
TAXATION IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
TAXATION OF COSTS - REASONS BY G. SMITH, TAXING OFFICER
DATE OF REASONS: January 14, 1998
APPEARANCES:
| Mr. Stuart C. McCormack for the Plaintiff |
No one appearing for the Defendants
SOLICITORS OF RECORD:
STIKEMAN, ELLIOTT
Ottawa, Ontario for the Plaintiff
LEGER, ROBIC, RICHARD
| Montreal, Quebec for the Defendants PACIFIC PANTS CO. INC., SHELDON LIEBMAN and ANNE LIEBMAN |