Date: 19980223
Docket: T-2636-96
BETWEEN:
TAYLOR MADE GOLF COMPANY, INC.
and
SALOMON CANADA SPORTS LTD.
Plaintiffs
- and -
1110314 ONTARIO INC. (doing business as SELECTION SALES)
Defendant
TAXATION OF COSTS - REASONS
G.M. SMITH,
TAXING OFFICER
[1] This action was commenced by Statement of Claim filed on December 2, 1996 alleging infringement of the plaintiffs' trade mark TAYLOR MADE U.S. On September 30, 1997, the Court rendered default judgment against the defendant and awarded the plaintiffs' their costs of this action. This is the taxation of those costs.
[2] On October 9, 1997, the plaintiffs filed a Bill of Costs appended to the affidavit of Jamie Bocking. The affidavit of Steve De Gooyer was filed on October 17, 1997 as proof of service of the Bill of Costs on the defendant.
[3] In accordance with the plaintiffs' request that the taxation proceed on the basis of written representations, without the personal appearance of the parties, I instructed that the defendant would have until November 4, 1997 to file representations in reply to the plaintiffs' Bill. The plaintiffs were given until November 14, 1997 to file representations in rebuttal.
[4] On November 6, 1997, the defendant's newly engaged counsel advised that he intended to apply to the Court to set aside the default judgment. He further indicated that the plaintiffs had consented to a delay of the assessment until he could properly inform himself of this matter on or before November 7, 1997. I acceded to the defendant's request by instructing that the taxation would be held in abeyance until further notice from the parties.
[5] By early December, no action had yet been taken by the defendant to either move the Court or otherwise respond to the plaintiffs' Bill of Costs. By letter dated December 4, 1998, counsel for the plaintiffs requested that, since they had not been served with any Motion by the defendant, the taxation should proceed. Counsel for the defendant responded the following day requesting a further extension of two weeks. He explained difficulties in completing affidavits, confirmed that the Motion to set aside judgment was expected to be filed the next week and suggested that extra time would be needed to allow cross-examination by the plaintiffs.
[6] On December 9, 1997, plaintiffs' counsel confirmed to the defendant that they did not intend to cross-examine on the affidavits which had been served and requested again that the taxation proceed. It was not until January 7, 1998, however, that I had an opportunity to deal with this matter whereupon I issued instructions again giving the defendant until January 20, 1998 to file representations in response to the Bill and giving the plaintiffs until January 27, 1998 for rebuttal.
[7] On February 5, 1998, in the absence of any further response on behalf of the defendant, the Registry contacted defendant's counsel who indicated once more that he expected to write to the Court in about a week following consultation with his client. It was following that conversation with defendant's counsel that this matter was returned to me for consideration.
[8] At the time of writing these reasons, it is now over two weeks since the last communication from defendant's counsel, more than four months since the plaintiffs filed their Bill of Costs and representations were requested from the defendant. Three months have passed since defendant's counsel first advised that he expected to move the Court to set aside judgment. Nothing has been filed by the defendant in opposition to either the Bill of Costs or the judgment itself. The defendant has had ample time to make its representations. I see no reason to delay this assessment any further.
[9] A total of 7 units is claimed for the services of counsel under item 1 of Tariff B, 4 units under item 4 and 1 unit under item 26. The units claimed for those services are distinguished in the Bill in connection with each of the lawyers from the firm who worked on this case. For example, under item 1 for preparation of the Statement of Claim, the plaintiffs identify 5 units for Mirko Bibic and 2 units for Kathryn Chalmers. I do not take this to mean that the plaintiffs are claiming for first and second counsel as, for example, might be permitted under items 14 and 22 of the Tariff if so directed by the Court. Rather, I interpret the delineation of the individual lawyers' names quite simply as justification for claiming the maximum number of units under that item. The items claimed and the number of units requested appear to be reasonable in the circumstances of these proceedings. I have therefore allowed them, multiplied by the unit value of $100, and arriving at a total amount of $1,200 for fees.
[10] The plaintiffs also claim disbursements for filing fees ($50.00), process services ($$288.90) and corporate search fees ($30.00). They are supported by the evidence, appear to be reasonable and necessary and are therefore also allowed.
[11] The claim of $88.00 for photocopies is disallowed for reasons similar to those I expressed recently in Taylor Made Golf Company, Inc. v. Sully Imports Ltd., unreported, Court file no. T-2637-96, dated October 23, 1997. The evidence filed in support of this claim is patently insufficient. No substantiation is shown whatsoever of the cost to the law firm for this service which appears to have been performed in-house. To allow this cost on the basis of the very thin evidence produced by the plaintiffs would place me in the untenable position of having to certify that the defendant should be held accountable for some arbitrary amount.
[12] I find support for this view in the unreported decision of this Court in Faulding (Canada) Inc. v. Pharmacia S.P.A., Court file no. T-421-97, dated November 4, 1997, where Mr. Justice McKeown recently stated:
| Notwithstanding the recent Rule changes which are intended to bring costs more in line with actual costs of litigation, I agree with the plaintiff that many of the disbursements are calculated on a scale more appropriate on a solicitor/client bill than on a party and party bill. For example, with respect to photocopying, as Teitelbaum, J. said in Diversified Products Corp. v. Tye-Sil Corp. (1990), 34 C.P.R. (3d) 267 (F.C.T.D.) at 276: |
| ... The item of photocopies is an allowable disbursement only if it is essential to the conduct of the action. Therefore, this is intended to reimburse a party for the actual out-of-pocket cost of the photocopy ... |
| The defendant provided me with no information on the actual out-of- pocket cost of the photocopying and I have allowed nothing in this respect. I am also unable to calculate the out-of-pocket cost of facsimile transmission charges. |
[13] Accordingly, the plaintiffs' Bill of Costs is assessed in the amounts of $1,200 for fees and $368.90 for disbursements. A Certificate of Taxation will issue for the total amount of $1,568.90.
"Gregory M. Smith"
Gregory M. Smith
Taxing Officer
Ottawa, Ontario
February 23, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
COURT FILE NO.: T-2636-96
BETWEEN:
| TAYLOR MADE GOLF COMPANY, INC. and |
SALOMON CANADA SPORTS LTD.
Plaintiffs
| - and - |
| 1110314 ONTARIO INC. |
(doing business as SELECTION SALES)
| Defendant |
TAXATION IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
TAXATION OF COSTS - REASONS BY G. SMITH, TAXING OFFICER
DATE OF REASONS: February 23, 1998
APPEARANCES:
| Mirco Bibic for the Plaintiffs |
Emilio S. Binavince for the Defendant
SOLICITORS OF RECORD:
STIKEMAN, ELLIOTT
Barristers & Solicitors
Ottawa, Ontario for the Plaintiffs
BINAVINCE, MERNER,
BURTON, MASSIE
Barristers & Solicitors
| Ottawa, Ontario for the Defendant |