AstraZeneca AB v. Novopharm Ltd., 2004 FCA 258 (2004)

Extract

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AstraZeneca AB v. Novopharm Ltd., 2004 FCA 258 (2004)

Date: 20040712

Docket: A-668-01

Citation: 2004 FCA 258

BETWEEN:

ASTRAZENECA AB

Appellant

- and -

NOVOPHARM LIMITED

Respondent

- and -

THE REGISTRAR OF TRADE-MARKS

Respondent

ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1] The Appellant was unsuccessful before the Registrar of Trade-marks and before the Federal Court concerning its application for registration of a yellow pharmaceutical (treatment of hypertension) tablet design as a trade-mark. On February 4, 2003, the Federal Court of Appeal dismissed its appeal with costs (hereafter "the Yellow Tablets Decision"). The Respondent, Novopharm Limited (hereafter "the Respondent"), renounced before me the claim for PST of 8% in its bill of costs.

Item 19 7 units claimed for Memorandum of Fact and Law (available range 4-7 units: hereafter, the numbers in brackets represent the available range)

Item 21(a) 3 units claimed for response to the Appellant's written motion for determination of the contents of the Appeal Book (2-3)

Item 22(a) 3 units claimed per hour (6 hours) for appearance at the appeal hearing (2-3)

Item 22(b) 50% of the amount calculated under Item 22(a) claimed for second counsel

Item 25 1 unit claimed for services after judgment (1)

Item 26 6 units claimed for the assessment of costs (2-6)

$1704.15 claimed for disbursements: long-distance tolls ($14.59); photocopies ($1,294.80); computer database research ($375.26) and facsimiles ($19.50)

The Appellant's Position

[2] The Appellant argued generally that the counsel fee items in Tariff B represent discrete services and therefore the disposition for one should not affect the other. For example, if items 21 or 22(b) are disallowed, items 19 or 22(a) should not be increased to compensate. It was not improper for the Appellant to resist changes to the appeal book regardless of it ultimately losing this appeal. The Appellant suggests 5 and 2 units respectively for items 19 and 22(a) in the absence of any justification for maximum claims, particularly given that the Respondent's submissions took only 46 minutes of the approximate 245 minutes for the hearing. Only four hours should be allowed for item 22(a).

[3] The Appellant argued further to Ayangma v. The Queen [2001] F.C.J. No. 576 (A.O.) that, given the Court's order was silent as to costs, nothing is allowable for item 21. As well, given that an "assessment officer" is defined as distinct from the "Court" as a function of Rule 2 and of the Federal Courts Act , ss. 3 and 5(1), nothing is allowable for item 22(b) in the absence of a direction from the Court. The absence of a jurisdictional bar against an assessment officer addressing disbursements relative to ...

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