Date: 20040330
Docket: T-184-99
Citation: 2004 FC 484
BETWEEN:
CANADIAN BUSINESS SCHOOL INC.,
Plaintiff
- and -
SUNRISE ACADEMY INC.,
Defendant
Assessment Officer
[1] The Plaintiff, represented by counsel, brought an action alleging passing-off further to the Trade-marks Act, s. 7(b). The Court dismissed the action with costs to the "respondent". At the hearing before me of the assessment of the Defendant's bill of costs, I ruled that authorities such as Genpharm Inc. v. The Minister of Health et al., [2002] F.C.J. No. 1018 (F.C.A.) at para. [8], permit me to examine reasons of the court to determine, if necessary, the intent of the decision. I am satisfied that the Court intended here to award costs of the action to the Defendant.
[2] The Plaintiff's solicitor has not been removed from the record. A Mazher Jaffery purports to act on behalf of the Plaintiff, including negotiating with the Defendant's solicitor to settle costs. The Defendant gave notice of the process of the assessment of costs to both the Plaintiff's solicitor and to Mr. Jaffery. During Mr. Jaffery's appearance before me, I explained to him that the Plaintiff's solicitor was not properly off the record and that the existence of Rule 120 reflects the concerns for lay persons purporting to represent corporate entities. The Defendant felt that further delay would prejudice its position, including the burden of additional costs: I agreed. I gave Mr. Jaffery approximately one month to serve and file written submissions in response to the Defendant's bill of costs. In so doing, I specifically directed that said deadline was to apply if he decided to engage and instruct counsel to prepare documents. The Defendant was given permission to file written materials in response.
[3] Mr. Jaffery prepared and filed a document himself. His document is not helpful in terms of isolating issues and of advancing commentary relevant for an assessment of costs, both of which could assist me in arriving at a decision. For example, it asserts that the calculation of GST in the bill of costs represents tax on tax. The evidence led by the Defendant clearly establishes that this is not the case. The most that could be said of his document, in my view, is that it opposes the bill of costs because the latter makes excessive claims. Effectively, the absence of any relevant representations on behalf of the Plaintiff leaves the Defendant's bill of costs unopposed in any rational fashion. My view, often expressed in comparable circumstances, is that the Federal Court Rules, 1998 do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. There were items for services of counsel which might have attracted disagreement, but the amount claimed in total in the bill of costs is generally arguable within the limits of the award of costs as reasonable in the circumstances of this litigation. However, there are two items requiring intervention as a function of my expressed parameters above and given that general opposition to this bill of costs has been expressed.
[4] First, 7 units are claimed under item 5 for preparation of written submissions regarding a notice of status review. The listing of items in Column III of Tariff B is for discrete services of counsel. Item 5 addresses preparation of a contested motion, but not a notice of status review. In the past, I have allowed costs for preparation for notice of status review under item 27, which I also will do here at 3 units.
[5] Second, 7 units are claimed under item 5 for preparation of the Defendant's motion to compel answers on discovery. The record clearly discloses that this motion was never called. Rule 400(1), which vests full discretionary power in the Court over awards of costs, means that orders and judgments must contain visible directions that costs have been awarded. Given the Federal Courts Act, ss. 4 and 5.1(1) defining the Court, and Rule 2 of the Federal Court Rules, 1998 defining an assessment officer, the absence of that exercise of prior discretion by the Court leaves me without jurisdiction under Rule 405 to assess costs. In Webster v. Canada (Attorney General), [2003] F.C.J. No. 1652 (A.O.), I concluded that the Rule 400(1) discretion in the court for interlocutory costs is exercised independently from the result of the judgment, except where expressly provided by language such as "costs in the cause". Thus, a judgment after trial does not generally perfect entitlement to costs for interlocutory events for which the relevant orders were silent on costs or specifically denied costs or, as here, do not exist. I remove the 7 units claimed. The record indicates that the Defendant has not claimed in its bill of costs for in-house photocopies. I do not remove anything from the claimed disbursements for possible photocopies associated with this motion. However, there may have been other miscellaneous and associated costs, such as couriers, associated with this motion: I remove $40.00.
[6] In all other respects, I allow the Defendant's costs as claimed. The Defendant asked that the maximum 6 units under item 26 for assessment of costs, plus disbursements of $25.00, be allowed given the difficulty posed by Mr. Jaffery's conduct during the assessment process. I allow 5 units plus the $25.00 for disbursements. The Defendant's bill of costs, presented at $22,796.48, is assessed and allowed at $22,074.23.
(Sgd.)" Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
March 30, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-184-99
STYLE OF CAUSE: CANADIAN BUSINESS SCHOOL INC.,
Plaintiff
- and -
SUNRISE ACADEMY INC.,
Defendant
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: January 20, 2004
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: March 30, 2004
APPEARANCES:
Mazher Jaffery for Plaintiff
Rosamaria Longo for Defendant
SOLICITORS OF RECORD:
Riches, McKenzie & Herbert LLP for Defendant
Toronto, ON