Melo's Food Centre Ltd. v. Borges Food Ltd.
T-916-89
Reinhardt T.O.
8/8/96
22 pp.
Taxation of defendant's bill of costs on party and party basis-Plaintiff seeking remedies for alleged infringement of registered trade mark by defendant, for passing off wares and directing attention to them in manner likely to cause confusion between defendant's wares and those of plaintiff-Action dismissed with costs to defendant-Other criteria along with complexity aspect of matter must be looked at in assessing item, such as volume of work, importance of issues-Motion dated January 29, 1992 important to defendant, considerable amount of time devoted to it-Issue of lost sales paramount to plaintiff's claim for damages-Production of second affidavit by plaintiff's expert entailed some time, preparation had to be exacted from defendant to respond-Volume of work not justifying award at upper end of scale-Whether "waiting time" to be computed in calculation of time devoted to appearance on motion-Only time actually necessary for presentation of motion should be taken into consideration-Time dockets, while helpful, not absolutely essential to prove counsel's fees-"Sensible approximation approach" to be preferred to exacting of strict, precise evidence on proof of fees generally, a fortiori when Tariff silent on matter-Things to be considered before making assessment: duration of trial, number of witnesses to be examined or cross-examined, importance, complexity of issues involved, overall submissions from counsel-Photocopies allowable disbursement if essential for conduct of action, per Teitelbaum J.'s decision in Diversified Products Corp. v. Tye-Sil Corp. (1990), 34 C.P.R. (3d) 267 (F.C.T.D.)-Law office not in business of making profit on photocopy equipment-Must charge actual cost-Party claiming such disbursements has burden to satisfy Taxing Officer as to actual cost of essential photocopies-Sufficient, reasonable proof must be lead to satisfy Taxing Officer expenses were incurred-Absolute, detailed evidence not indispensable requirement for award to be made-Taxing Officer not prevented from resorting to discretion to make award in absence of cogent evidence-Sufficient, reasonable proof of photocopies made-Whether photocopies made actually necessary, essential to "critical path of litigation"-Fair number of essential pages of photocopy would be 1,800 pages-Admissions by plaintiffs that $0.09 per page reasonable rate in absence of further proof of $0.25 per page rate originally charged by law firm-Defendant's bill of costs, submitted at $24,943.48, taxed, allowed at $22,505.86.