Date: 20060118
Docket: T-2685-95
Citation: 2006 FC 45
BETWEEN:
COCA-COLA LTD. and COCA-COLA BOTTLING LTD.
Plaintiffs
and
MUSADIQ PARDHAN c.o.b. as UNIVERSAL EXPORTERS, 1106729 ONTARIO LIMITED c.o.b. as UNIVERSAL EXPORTERS AND OTHERS
Defendants
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] Copies of these reasons are filed today in Court files A-93-00, A-869-97 and A-335-98 and apply there accordingly.
[2] On February 20, 2004, in the proceeding T-2685-95, as part of the order regarding the parties' motions before the Court that day, the Prothonotary, Roger Lafrenière (hereafter "Prothonotary Lafrenière"), ordered the following:
An assessment of costs will be scheduled in respect of all outstanding costs orders in the Federal Court, for all parties, including the Plaintiffs' costs relating to the Court of Appeal decision of January 14, 2003 ("the Contempt Appeal Costs"). At the election of the Defendants, the Contempt Costs, and Contempt Appeal Costs owed by the Defendant Musadiq Pardhan, may be reduced by any assessed amounts owed by the Plaintiffs to the Defendants, including the amount owing to the Defendant, Mustafa Pardhan, as fixed by Lutfy C. J. on January 20, 2000.
[3] Directions were issued on February 28, 2005 setting a timetable for written submissions
and supporting materials. At the request of the Defendants, Musadiq Pardhan c.o.b. as Universal Exporters, 1106729 Ontario Limited c.o.b. as Universal Exporters and others, (hereafter the "Pardhan Defendants"), a one day extension of time was granted for the filing of the Pardhan Defendants' materials and an identical extension of time was given to the Plaintiffs, Coca-Cola Ltd. and Coca-Cola Bottling Ltd. (hereafter the "Coca-Cola Plaintiffs"), for their respective rebuttal materials. In addition, after reviewing all the materials submitted and after brief telephone discussions with the parties, a timetable was issued on November 8, 2005 for the filing of further written argument and further written reply regarding the single issue of set-off for file T-2685-95 and all of the related proceedings. The Pardhan Defendants filed their respective written argument within the time frames requested.
[4] On the basis of the above mentioned order of the Federal Court, the Coca-Cola Plaintiffs requested that these assessments of costs be held for all of the outstanding costs ordered for or against the parties in this and associated proceedings. Rule 408 (2) of the Federal Courts Rules states:
Rule 408(2) - Where the parties are liable to pay costs to each other, an assessment officer may adjust those costs by way of set-off.
Notwithstanding the Pardhan Defendants' Supplementary Written Submissions regarding the issue set-off, I intend to deal with the outstanding assessments of costs for the Coca-Cola Plaintiffs as well as the Pardhan Defendants by way of set-off.
Assessment
[5] With regard to the request that I assess the costs of the matter heard at the Supreme Court of Canada, it is my opinion that I do not have any jurisdiction to deal with those associated costs. I refer to Section 47 of the Supreme Court Act which states:
The Court may, in its discretion, order the payment of the costs of the Court appealed from, of the court of original jurisdiction, and of the appeal, or any part thereof, whether the judgment is affirmed, or is varied or reversed.
I also refer to Rule 83 of the Rules of the Supreme Court of Canada which defines who shall assess costs at the Supreme Court of Canada.
Rule 83(1):
Costs in a proceeding shall be taxed by the Registrar party and party in accordance with the tariff of fees and disbursements set out in Schedule B unless the Court orders otherwise.
Rule 83(2):
The party requesting the taxation of costs shall serve on all parties who are liable to pay and file with the Registrar a notice of taxation in Form 83A together with a bill of costs in Form 83B.
A simple reading of the Judgment of the Supreme Court of Canada dated May 3, 2000 indicates that the extension of time to bring the leave application was granted, but the "...application for leave to appeal is dismissed with costs." In my opinion, there is no provision in the Supreme Court Act, the Rules of the Supreme Court or the Judgment of the Supreme Court, as I have outlined above, that gives me jurisdiction for matters that pertain to or were heard before the Supreme Court of Canada. Therefore, I will not deal with the assessment of costs and disbursements regarding any matter from either party that was before the Supreme Court of Canada. I do, however, within the parameters of the Federal Courts Rules, have the jurisdiction to assess the outstanding costs of all the matters which have not yet been determined in the Federal Court and the Federal Court of Appeal.
[6] Both parties have submitted in their respective materials that the costs associated with their assessable services and disbursements are reasonable. Similarly, both parties indicate that their respective actual costs far exceed the amounts claimed in the bills of costs. In fact, the Coca-Cola Plaintiffs refer to the decision Sanmamas Compania Maritima SA v. Netuno (The), (1995), 102 FTR 181 (FCTD) which addresses the issue of recovery of costs:
...Under the old regime, the jurisprudence was clear; the parties could not expect to recover all their costs under the tariff relating to party and party costs. However, under the new rule the general philosophy is that party and party costs should bear a reasonable relationship to the actual costs of the litigation.
...
In Bruce Starlight et al. v Her Majesty the Queen, [2001] F.C.J. 1376 (TO), the Taxing Officer specifically in paragraph [7] dealt with the units claimed for respective assessable services:
[7] The structure of the Tariff embodies partial indemnity by a list of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing a synthesizing of issues leaving relatively straightforward issues for trial. Therefore, each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation. If items are a function of a number of hours, the same unit value need not be allowed for each hour particularly if the characteristics of the hearing vary throughout its duration. In this bill of costs, the lower end of the range for item 5 and the upper end of the range for item 6 are possible results. Some items with limited ranges, such as item 14, required general distinctions between an upper and lower assignment in the range for the service rendered.
These two precedents will assist me in addressing the concerns raised by the parties regarding the respective units claimed for assessable services and associated disbursements.
[7] It should be noted that the unit value for assessable services in Section 4 of Tariff B of the Federal Courts Rules was increased to $120.00 on April 1, 2005. The parties filed their respective materials before and after that date regarding file T-2685-95 and all of the associated proceedings which the parties have requested I assess. It should also be noted that some of the assessable services that are claimed may have occurred when the unit value was $100.00. Since the Bills of Costs were submitted when the unit value was $110.00, in my opinion and in the interests of procedural fairness, it is appropriate that I use $110.00 as the unit value when assessing file
T-2685-95 as well as all of the associated proceedings.
(T-2685-95) Bill of Costs for the Pardhan Defendants' Statement of Defence
[8] The Pardhan Defendants, in Tab 1 of their Costs Assessment Submissions, have submitted a Bill of Costs for this pleading of $535.00 which includes assessable services of 4 units for Item 2 (Preparation and filing of all defences, replies, counterclaims or Respondents' records and materials) and disbursements plus GST. The Coca-Cola Plaintiffs have raised several arguments in their Responding Submissions for Costs Assessment in opposition to this claim for associated disbursements. In paragraph [7] above, I have dealt with the Coca-Cola Plaintiffs' objection to the Pardhan Defendants claiming $110.00 as the unit value for assessable services by allowing this specific unit value for this and all of the associated proceedings.
[9] The Coca-Cola Plaintiffs also submit the Pardhan Defendants have not provided evidence to substantiate the amount or the payment of these disbursements. The Coca-Cola Plaintiffs refer to the Federal Courts Rules, Tariff B, section 1(4):
1(4) Evidence of disbursements - No disbursement, other than fees paid to the Registry, shall be assessed or allowed under this Tariff unless it is reasonable and it is established by affidavit or by the solicitor appearing on the assessment that the disbursement was made or is payable by the party.
The Coca-ColaPlaintiffs support this objection to the Pardhan Defendants' disbursements by referring to F-C Research Institute Ltd. et al v. M.N.R., (1995), 95 DTC 5583 (TO) at pages 2 and 3 (QL):
...the simple delineation of expenditures generally described in a Bill and supported only by the scant statement that they were reasonable and necessary fails to provide sufficient information upon which a taxing officer can 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. ...
The Coca-Cola Plaintiffs refer to paragraphs 7 and 8 of the Affidavit of Musadiq Pardhan in which the Pardhan Defendant, Musadiq Pardhan, indicates that he does not have any proof of specific disbursements, but he submits that the disbursements are reasonable. In addition, the Coca-Cola Plaintiffs note that the Pardhan Defendant, Musadiq Pardhan, attaches undated as well as dated portions of solicitors' invoices which refer to general disbursements. However, the Coca-Cola Plaintiffs submit this evidence falls short of what is required by section 1(4) of Tariff B of the Federal Courts Rules and request that the Pardhan Defendants' disbursements be disallowed.
[10] The Coca-Cola Plaintiffs'objections to the Bill of Costs for the Pardhan Defendants' Statement of Defence has given rise to some general and specific concerns as to whether the Pardhan Defendants' disbursements have been substantiated with regards to section 1(4) of Tariff B of the Federal Courts Rules. In reviewing this issue, it is appropriate that I rely on the reasons in Grace M. Carlile v. Her Majesty the Queen, [1997], 97 D.T.C. 5287 (TO):
...Taxing officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs indeed were incurred. ...
Further, Phipson on Evidence, Fourteenth Edition (London: Sweet and Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards of some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing zero dollars on the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donation of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd ....
(emphasis in italics is mine)
I am of the opinion that the Pardhan Defendants are responsible to comply with section 1(4) of Tariff B of the Federal Courts Rules. However, it is appropriate that I consider the reasons in Grace M. Carlile, supra outlined above and it is obvious to me that 'real dollars' were expended to defend this proceeding. Using my discretion, I reduce the total disbursements and GST claimed for the Bill of Costs for the Pardhan Defendants' Statement of Defence Bill by fifty percent to $32.20. The assessable services of 4 units ($440.00) plus GST ($30.80) for Item 2 (Preparation and filing of all defences, replies, counterclaims or respondents' records and materials) and the reduced disbursements plus GST are allowed for the Bill of Costs for the Pardhan Defendants' Statement of Defence for the total amount of $503.00 payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.
(T-2685-95) Bill of Costs for the Pardhan Defendants' Motion to Strike Plaintiffs' Pleadings
[11] The Pardhan Defendants have requested 4 units and 9 units respectively for Item 5 (Preparation and filing of a contested motion, including materials and responses thereto) and Item 6 (Appearance on a motion per hour) for these assessable services. The Coca-Cola Plaintiffs' objection to the unit value amount has been addressed in paragraph [7] above. Using my discretion and my reasoning from paragraph [10] above, I reduce the total disbursements and GST claimed for the Bill of Costs for the Pardhan Defendants' Motion to Strike Plaintiffs' Pleadings by fifty percent to $62.60. The assessable services for Item 5 and Item 6 of 13 units in total ($1,430.00) plus GST ($100.10) and the reduced disbursements plus GST are allowed for the Bill of Costs for the Pardhan Defendants' Motion to Strike Plaintiffs' Pleadings for the total amount of $1,592.70 payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.
(T-2685-95) Bill of Costs for the Pardan Defendants' Response to Anton Pillar Costs Motion
[12] The Pardhan Defendants have requested 4 units and 6 units respectively for Item 5 (Preparation and filing of a contested motion, including materials and responses thereto) and Item 6 (Appearance on a motion per hour) for these assessable services. The Coca-Cola Plaintiffs' objection to the unit value for these items has been addressed in paragraph [7] above. Using my discretion and my reasoning from paragraph [10] above, I reduce the total disbursements and GST claimed for the Bill of Costs for the Pardhan Defendants' Response to Anton Pillar Costs Motion (Bill of Costs) by fifty percent to $52.43. The assessable services of 10 units in total ($1,100.00) plus GST ($77.00) and the reduced disbursements plus GST are allowed for the Bill of Costs for the Pardhan Defendants' Response to Anton Pillar Costs Motion for the total amount of $1,229.43 payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.
(T-2685-95) Bill of Costs for the Pardhan Defendants' Motion to Dissolve Injunction and Dismiss Action
[13] The Pardhan Defendants have requested 7 units and 12 units respectfully for Item 5 (Preparation and filing of a contested motion, including materials and responses thereto) and Item 6 (Appearance on a motion per hour) for these assessable services. The Coca-Cola Plaintiffs' objection to these items has been addressed in paragraph [7] above. Using my discretion and my reasoning from paragraph [10] above, I reduce the total disbursements and GST claimed for the Bill of Costs for the Pardhan Defendants' Motion to Dissolve Injunction and Dismiss Action by fifty percent to $350.83. The assessable services of 19 units in total ($2,090.00) plus GST ($146.30) and the reduced disbursements plus GST are allowed for the Bill of Costs for the Pardhan Defendants' Motion to Dissolve Injunction and Dismiss Action for the total amount of $2,587.13 payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.
(A-869-97) Bill of Costs for the Pardhan Defendants' Response to Appeal of Order Striking Claim
(A-335-98) Bill of Costs for the Pardhan Defendants' Response to Appeal of Order Dismissing Action and Dissolving Injunction
[14] On September 18, 1998, the Federal Court of Appeal ordered the appeal proceedings
A-869-97 and A-335-98 be consolidated, issued a timetable for the filing of Memoranda of Fact and Law to the parties and ordered the consolidated appeals be set down for hearing for one day at Toronto on a date to be fixed by the Judicial Administrator. In my opinion, with respect to this order of the Federal Court of Appeal, it is appropriate that I assess both of these proceedings as one appeal proceeding. However, there may be circumstances with regard to these two specific proceedings that justify separating the issues or claims requested by the parties.
[15] The Coca-Cola Plaintiffs have objected to the Pardhan Defendants' claim for Item 25 (Services after judgment not otherwise specified) and have indicated that the Pardhan Defendants have not outlined what work was incurred to justify 2 units in total for this assessable service for both appeal proceedings. In addition, the Coca-Cola Plaintiffs submit that the units requested for this assessable service should be shared equally between the two proceedings, A-869-97 and A-335-98, since these two matters were heard together on the same day. The Coca-Cola Plaintiffs have also raised the issue of the unit value to be used as well as their previous concerns outlined in paragraph [9] above with regard to the alleged lack of compliance by the Pardhan Defendants to Section 1(4) of Tariff B of the Federal Courts Rules. The Coca-Cola Plaintiffs' objection to the unit value amount has been addressed in paragraph [7] above. With regard to Item 25, I agree with the Coca-Cola Plaintiffs that it is reasonable that this assessable service be shared equally between these appeal proceedings. Therefore, I will allow 1 unit in total ($110.00) for Item 25 plus GST ($7.70) for these appeal proceedings.
[16] The Pardhan Defendants have claimed 1 unit for their Item 17 (Services for receiving Notice of Appeal) for each of these proceedings in their respective Bills of Costs. In Tariff B of the Federal Courts Rules, this assessable service actually reads "17. Preparation, filing and service of Notice of Appeal.". In my opinion, these assessable services may have been claimed by the Coca-Cola Plaintiffs had they been successful on these appeal proceedings since they prepared, filed and served the Notices of Appeal. However, I do not think it is appropriate for the Pardhan Defendants to request 2 units for simply receiving the Notices of Appeal at their respective offices. Therefore, the assessable services for Item 17 in each of the appeal proceedings are disallowed.
[17] The Pardhan Defendants have claimed 1 unit for Item 20 (Requisition for hearing) for each of these proceedings in their respective Bills of Costs. As mentioned above in paragraph [14], the Order of the Federal Court of Appeal dated September 15, 1998, indicated that the Judicial Administrator was to set down these consolidated appeals at Toronto for one day. In fact, the Judicial Administrator on January 14, 1999, set down by consent, the time, date and place, for the hearing of these consolidated appeal proceedings. After reviewing all of the file materials for both appeals, I was unable to find any Requisition for Hearing that was filed in these proceedings. Therefore, the assessable services for Item 20 on each of the appeal proceedings are disallowed.
[18] The Pardhan Defendants have claimed 1 unit for Item 18 (Preparation of appeal book) for each of these proceedings in their respective Bills of Costs. With regard to these assessable services claimed, I note that there were separate Appeal Books prepared for each of the appeal proceedings and a review of the file materials reveals that the Pardhan Defendants signed the Agreement Re Appeal Books in the appeal proceeding in A-335-98. However, in the appeal proceeding A-869-97, the parties did not file a Joint Agreement Re Appeal Books. I note the contents of the Appeal Books, upon motion by the Coca-Cola Plaintiffs to be dealt without personal appearance, were determined by an Order of the Federal Court of Appeal dated July 15, 1998. The Pardhan Defendants did not respond to the motion. Their correspondence to the Coca-Cola Plaintiffs regarding certain concerns about the contents of the appeal books were provided by the Coca-Cola Plaintiffs as exhibits to the affidavit in support of the motion. In my opinion, with regard to this issue and in these specific circumstances, the Pardhan Defendants did not assist the Federal Court of Appeal with this motion and should not be allowed to claim 1 unit for this assessable service in the appeal proceeding A-869-97. Therefore, based on the reasoning I have outlined in this paragraph, I disallow the 1 unit for the assessable service Item 20 in A-869-97, but allow the 1 unit ($110.00) for Item 20 for appeal proceeding A-335-98.
[19] The Pardhan Defendants have claimed a total of 21 units (7 hours x 3 units per hour) for Item 22 (Counsel fee on hearing of appeal: (a) to first counsel, per hour) for each of these proceedings in their respective Bills of Costs. As submitted by the Coca-Cola Plaintiffs, since the consolidated appeal proceedings were heard together pursuant to the Order of the Federal Court of Appeal mentioned above in paragraph [14], it is appropriate that I only allow these assessable services once for both Bills of Costs. A review of the Abstract of Hearing contained in the file materials indicates that the hearing length was five hours and 40 minutes. I have considered the time required for the parties to check-in with the Court Registrar prior to the start time of the hearing and the time required for clean-up at the end of the hearing. I believe this to be a common sense and practical approach to determining the duration of this hearing and I allow the parties to claim for 6 hours for attendance of first counsel at the hearing of the appeal of these proceedings. Therefore, I allow in total 18 units ($1,980.00) for Item 22 for this assessable service for first counsel for the consolidated appeal hearing.
[20] The Pardhan Defendants have claimed a total of $1,150.00 for Item 22(b) for each of these proceedings in their respective Bills of Costs. Item 22(b) of Tariff B of the Federal Courts Rules reads as follows:
"Counsel fee on hearing of appeal:
...
(b) to second counsel, where the Court directs, 50% of the amount calculated
under paragraph (a)."
In my opinion, the key phrase in Item 22 (b) of Tariff B of the Federal Courts Rules is "...where the Court directs..." I have reviewed the material in the Court record and have determined that no such direction exist, therefore, this assessable service is disallowed for each of the appeal proceedings.
[21] Using my discretion and my reasoning from paragraph [10] above, I reduce the total disbursements and GST claimed for the appeal proceedings A-869-97 and A-335-98 by fifty percent to $111.54. The assessable services of 20 units in total ($2,200.00) plus GST ($154.00), which I have allowed in paragraphs [15], [18] and [19] above, and the reduced disbursements plus GST are allowed for both the appeal proceedings for the total amount of $2,465.54 payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.
(A-93-00) Bill of Costs for the Pardhan Defendants' Motion to Determine Contents of Appeal Book
(A-93-00) Bill of Costs for the Plaintiffs' Motion to File a Supplemental Appeal Book
(A-93-00) Appeal of Contempt hearing (Bill of Costs)
[22] The Order of the Federal Court of Appeal dated January 8, 2001 indicated the panel presiding at the appeal in A-93-00 would decide the issue of costs for the Pardhan Defendants' motion to determine the contents of the Appeal Books. I note the Order of the Federal Court of Appeal dated January 14, 2003 dismissed the appeal proceeding in A-93-00 and ordered costs payable to the Coco-Cola Plaintiffs. In my opinion, this decision allows me to tax the assessable services and disbursements claimed for the Pardhan Defendants' Motion to Determine Contents of Appeal Book as if the Federal Court of Appeal had ordered that those motion costs were costs in the cause. In addition, as mentioned above in paragraph [2], Prothonotary Lafrenière's order specifically indicated that an"...assessment of costs will be scheduled in respect of all outstanding costs orders in the Federal Court..." and he included those matters that were in the Federal Court of Appeal. The assessable service claimed by the Coca-Cola Plaintiffs for Item 21(a) (Counsel fee: (a) on a motion, including preparation, service and written representations or memorandum of fact and law) is reasonable and has been justified by the Coca-Cola Plaintiffs. Therefore, I allow these assessable services of 3 units ($330.00) plus GST ($23.10) for Item 21(a) associated with this motion to the Coca-Cola Plaintiffs for the total amount of $353.10.
[23] The Order of the Federal Court of Appeal dated February 12, 2002 granted the Coca-Cola Plaintiffs' motion to file a Supplemental Appeal Book in the appeal proceeding A-93-00 but made no order as to the issue of costs for the motion. The Coca-Cola Plaintiffs have requested 3 units for Item 21(a) (Counsel fee: (a) on a motion, including preparation, service and written representations or memorandum of fact and law) for this assessable service. It is a well established principle that costs are at the Court's discretion. Where an order is silent with respect to costs, it implies that there is no visible exercise of the Court's discretion under Rule 400(1) of the Federal Courts Rules. Reference may also be made to a relevant passage in Mark M.Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, par. 105.7:
...Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at trial with nomention of costs, it is as though the judge had said that he "saw fit to make no order as to costs"...
I also rely on Kibale v. Canada(Secretary of State), [1991] 2 F.C. D-9 (TO) which echoes the
same sentiment:
If an order is silent as to costs, no costs are awarded.
For these reasons, the 3 units requested for Item 21(a) for the Coca-Cola Plaintiffs' Motion to File a Supplemental Appeal Book are disallowed.
[24] As mentioned above in paragraph [23] above, the Order of the Federal Court of Appeal dated January 14, 2003 dismissed the appeal proceeding A-93-00 and, in addition, ordered one set of costs payable by the Pardhan Defendants to the Coca-Cola Plaintiffs on a party and party basis. I have outlined above some of the general concerns the Coca-Cola Plaintiffs have submitted regarding affidavit proof of disbursements. The Coca-Cola Plaintiffs have further submitted that the actual costs incurred are far higher than the amount that may be permitted under Tariff B of the Federal Courts Rules. The Coca-Cola Plaintiffs refer to Rule 400(1) and the associated factors that may be considered in awarding costs. Specifically, the Coca-Cola Plaintiffs submit the Pardhan Defendants' llegal issues were relatively complex and included Charter of Rights and Freedoms arguments. These wide-ranging appeal grounds resulted in a significant amount of work being required to respond to the appeal. The Coca-Cola Plaintiffs submit that it is appropriate that they be allowed to recover their respective costs at the upper end of Column III, Tariff B of the Federal Courts Rules for the reasons they have outlined.
[25] The Coca-Cola Plaintiffs in their Bill of Costs regarding this appeal proceeding in A-93-00 have claimed 1 unit for Item 17 (Services related to notice of appeal). Since this assessable service should be claimed by the Pardhan Defendants for preparation, filing and service of the Notice of Appeal, it is my opinion that it is appropriate for the Coca-Cola Plaintiffs to claim one unit for simply receiving the Notice of Appeal at its offices. For these reasons, Item 17 is disallowed.
[26] The Coca-Cola Plaintiffs have claimed 1 unit for Item 20 (Requisition for Hearing). I note that Pardhan Defendants served and filed the Requisition for Hearing. In my opinion, this assessable service may have been claimed by the Coca-Cola Plaintiffs had they prepared, filed and served the Requisition for Hearing, but they did not. Therefore, this request for 1 unit for Item 20 (Requisition for Hearing) is disallowed.
[27] The Coca-Cola Plaintiffs have claimed for Item 22 (Counsel fee: (b) to second counsel, where the Court directs, 50% of the amount calculated under paragraph (a)). In my opinion, which is similar to my reasoning in paragraph [20] above, the key phrase in Item 22 (b) of Tariff B of the Federal Courts Rules is "...where the Court directs..." I have reviewed the material in the Court record and have determined that no such direction exists. Therefore, the amount of $1,155.00 for this assessable service is disallowed for the appeal proceeding A-93-00.
[28] The Coca-Cola Plaintiffs have requested 3 units for preparation of this Bill of Costs in the appeal proceeding A-93-00 and have made reference to Item 28 (Services in a province by students-at-law, law clerks or paralegals that are of a nature that the law society of that province authorizes them to render, 50% of the amount that would be calculated for a solicitor) of Tariff B of the Federal Courts Rules. I am of the opinion that it is appropriate that I address the issue of costs for the preparation of all of the Bills of Costs presented by the all of parties as a separate issue within this assessment of costs. For these reasons, the 3 units requested for this assessable service are disallowed and this specific issue will be dealt with in the later paragraphs of this assessment.
[29] I note that one of the remaining assessable service Item 27 (Such other services as may be allowed by the assessment officer or ordered by the Court) requested in the appeal proceeding A-93-00 refers to the costs associated with the Notice of Status Review which was granted by the Order of the Federal Court of Appeal dated November 6, 2000, payable forthwith after assessment to the Coca-Cola Plaintiffs. The remaining 1 unit, 7 units, 21 units and 1 unit respectively for Item 18 (Preparation of appeal book), Item 19 (Memorandum of fact and law), Item 22 (Counsel fee on hearing of appeal: (a) to first counsel, per hour) and Item 25 (Services after judgment not otherwise specified), appear to be reasonable. In my opinion, after reviewing all of the file materials as well as reviewing the parties' submissions, these assessable services have been justified by the Coca-Cola Plaintiffs. Therefore, I allow the remaining 33 units ($3,630.00) plus GST ($254.10) for the total of $3,884.10.
[30] The disbursements of the Coca-Cola Plaintiffs are supported by the Affidavit of Pamela D. Grieve, sworn March 10, 2005, and exhibits are attached which give an overview of the Coca-Cola Plaintiffs' law firm billing system. In my opinion, these exhibits directly refer to this appeal proceeding and the work and steps that were taken by the Coca-Cola Plaintiffs to advance this particular litigation. For these reasons, the disbursements of the Coca-Cola Plaintiffs are allowed at $2,095.73 plus GST ($146.70) for this appeal proceeding A-93-00. Therefore, the total assessable services of 36 units ($3,960.00) plus GST ($277.20) and disbursements ($2,095.73) plus GST ($146.70) are allowed for the appeal proceeding A-93-00 and the associated interlocutory motions for the total amount of $6,479.63 payable by the Pardhan Defendants to the Coca-Cola Plaintiffs.
(T-2685-95) Bill of Costs for the Coca-Cola Plaintiffs' Motion for better Affidavit of Documents
[31] The Order of the Federal Court dated July 29, 2002 fixed costs for this motion at $1,500.00 payable by the Pardhan Defendants to the Coca-Cola Plaintiffs. The Coca-Cola Plaintiffs have submitted that this Order of the Federal Court did not specifically state that this amount was to include disbursements, unlike the Order of the Federal Court dated February 20, 2004 which fixed costs as a lump sum payment. Therefore, the Coca-Cola Plaintiffs seek $981.65 for disbursements in addition to the fixed costs of $1,500.00.
[32] I cannot agree with the Coca-Cola Plaintiffs' submissions above. I refer to Rules 400(1) and (4) and 401(1) of Tariff B of the Federal Courts Rules:
Rule 400(1) - The Court shall have full discretionary power over the amount annd allocation of costs and the determination of by whom they are to be paid.
...
Rule 400(4) - The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs.
...
Rule 401.(1) - The Court may award costs of a motion in an amount fixed by the Court.
...
A simple reading of the Order of the Federal Court dated July 29, 2002 and a review of the Federal Courts Rules mentioned above in paragraph [21], indicates to me that the Federal Court has decided the issue regarding specific costs associated with the Coca-Cola Plaintiffs' Motion for better Affidavit of Documents. In considering these facts and without a direction of the Federal Court, it is my opinion that I do not have the authority to assess any disbursements associated with this motion. Therefore, the Coca-Cola Plaintiffs' requested disbursements of $981.65 are disallowed.
(T-2685-95) Bill of Costs of the Coca-Cola Plaintiffs' Response to Defendants' Cross-Motion
[33] The February 20, 2004 Order of the Federal Court dismissed the Pardhan Defendants' cross-motion in its entirety and indicated that the costs of this motion are payable by the Pardhan Defendants to the Coca-Cola Plaintiffs in the cause. In addition, as mentioned in paragraphs [2] and [22] above, the Federal Court ordered that an "...assessment of costs will be scheduled in respect of all outstanding costs orders in the Federal Court, for all parties..." Similar to paragraph [28] above, the Coca-Cola Plaintiffs have requested 3 units for Item 28 (Services in a province by students-at-law, law clerks or paralegals that are of a nature that the law society of that province authorizes them to render, 50% of the amount that would be calculated for a solicitor) of Tariff B of the Federal Courts Rules. For the same reasons outlined in that same paragraph, this assessable service is disallowed and this specific issue will be dealt with in the later paragraphs of these reasons.
[34] The Coca-Cola Plaintiffs have requested $676.50 for Item 6 (Appearance on a motion per hour). I note the Coca-Cola Plaintiffs' motion for better Affidavit of Documents and the Pardhan Defendants' Cross-Motion were heard together on June 10, 2003. As outlined above in paragraph [32], the fixed costs of $1,500.00 contained in the Order of the Federal Court dated February 20, 2004 have dealt with these assessable services. Therefore, the assessable services claimed for Item 6 will be disallowed.
[35] The remaining 7 units and 1 unit respectively for Item 5 (Preparation and filing of a contested motion, including materials and responses thereto) and Item 25 (Services after judgment not otherwise specified) for the Coca-Cola Plaintiffs' Response to the Pardhan Defendants' Cross-Motion appear to be reasonable. In my opinion, after reviewing all of the file materials as well as the parties' submissions, these assessable services have been justified by the Coca-Cola Plaintiffs. Therefore, I allow the 8 units ($880.00) plus GST ($61.60).
[36] Consistent with my reasoning in paragraph [30] above, regarding the Coca-Cola Plaintiffs' proof of these disbursements for this Bill of Costs, I allow the amount claimed by the Coca-Cola Plaintiffs to $41.77 plus GST ($2.92). Therefore, the assessable services of 8 units ($880.00) plus GST ($61.60) and disbursements ($41.77) plus GST ($2.92) are allowed for the Coca-Cola Plaintiffs' Response to Pardhan Defendants' Cross-Motion in the proceeding T-2685-95 for the total amount of $986.29 payable by the Pardhan Defendants to the Coca-Cola Plaintiffs.
(T-2685-95) Bills of Costs for the Assessment of Costs
[37] As I outlined in paragraphs [28] and [33] above, it is appropriate that I address Item 26 (Assessment of costs) as a separate issue for all of the Bills of Costs which have been presented for this proceeding T-2685-95 as well as all of the associated proceedings. The Coca-Cola Plaintiffs have requested 6 units ($660.00) plus GST ($46.20) and disbursements ($137.00) plus GST ($9.59) photocopying, service and filing of the materials associated with this assessment of costs. The Pardhan Defendants have requested 6 units ($660.00) plus GST and disbursements ($77.00) plus GST ($9.59) for photocopying. I note my further directions issued on November 8, 2005 requesting written submissions and reply on the issue of set-off. I received one set of representations and was contacted by the one of the parties indicating their previously submitted representations had dealt with this issue. I have reviewed the amounts requested by both parties and I have considered the specific circumstances and all the representations and evidence presented. The Coca-Cola Plaintiffs' Bill of Costs (addressing Item 26) which includes assessable services, disbursements and GST is allowed in its entirety for the total amount of $852.79. The Pardhan Defendants' Bill of Costs (addressing Item 26) which includes assessable services, disbursements and GST is allowed in its entirety for the total amount of $788.59.
(T-2685-95) Bill of Costs for the Coca-Cola Plaintiffs' Motion for a Stay of Proceedings and Contempt Hearing
[38] The Order of the Federal Court dated February 20, 2004 fixed costs of $3,000.00 payable by the Pardhan Defendant, Musadiq Pardhan, to the Coca-Cola Plaintiffs in any event of the cause. The Contempt Order of the Federal Court dated January 20, 2000 fixed costs of $95,000.00 payable by the Pardhan Defendant, Musadiq Pardhan, to the Coca-Cola Plaintiffs. In addition, the same Contempt Order of the Federal Court fixed costs of $15,000.00 payable by the Coca-Cola Plaintiffs to the Pardhan Defendant, Mustafa Pardhan. Similar to my reasoning in paragraph [32] above, since the above decisions of the Federal Court dealt with the issue of costs, I have determined that I lack the jurisdiction to deal with them a second time. That is, these were awards by the Courts of lump sum costs. Therefore, in my opinion, I am restricted by the issue of res judicata in terms of my jurisdiction as an Assessment Officer to address these lump sum awards further and that includes the issue of set-off of these awards.
[39] As I noted in paragraph [4] above where I referred to Rule 408 (2) of the Federal Courts Rules and paragraph [38] above, I intend to deal with the issue of costs for the Coca-Cola Plaintiffs as well as the Pardhan Defendants by way of set-off within this assessment where it is appropriate and within my authority. In addition, with regards to the issue of set-off, it is appropriate that I consider Rule 3 of the Federal Courts Rules which states:
Rule 3 - These Rules shall be interpreted and applied so as to secure the most expeditious and least expensive determination of every proceeding on its merits
However, as outlined in paragraph [38] above, the two decisions of the Federal Court made specific awards of costs of $98,000.00 in total which is payable by the Pardhan Defendant, Musadiq Pardhan, to the Coca-Cola Plaintiffs and $15,000.00 in total which is payable by the Coca-Cola Plaintiffs to the Pardhan Defendant, Mustafa Pardhan. In addition, as outlined in paragraph [31] above, the Order of the Federal Court dated July 29, 2002 fixed costs for the Plaintiffs' Motion for better Affidavit of Documents at $1,500.00 payable by the Pardhan Defendants to the Coca-Cola Plaintiffs. Regarding these decisions of the Federal Court, I turn to Rule 400 (1) of the Federal Courts Rules:
Rule 400(1) - The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
In my opinion, I have dealt with the issue of my authority previously in paragraph [5] above as it pertains to the Federal Court and the Federal Court of Appeal. However, as outlined in Rule 400(1) and my reasoning outlined in paragraphs [32] and [38] above, there are limitations to what costs I can and cannot set-off.
[40] The Order of the Federal Court dated February 2, 2004 for proceeding T-2685-95 indicated the " ... payment of the costs owed by the Defendant, Musadiq Pardhan, to the Plaintiffs is to be made by way of the payment into Court of funds, or equivalent security in a form acceptable to the Plaintiffs, to be determined with the assistance of this Court if necessary. ..." The Coca-Cola Plaintiffs and the Pardhan Defendants should consider this Order of the Federal Court if they require clarification or assistance in satisfying these outstanding awards of costs for the Bills of Costs in T-2685-95 and all related proceedings.
[41] As outlined in this assessment, I have determined the assessment of the Bills of Costs payable by the Coca-cola Plaintiffs to the Pardhan Defendants in paragraphs [10], [11], [12], [13], [21] and [37] to be $503.00, $1,592.70, $1,229.43, $2,587.13, $2,347.84 and $788.59 respectively, for a total of $9,048.69. As well, I have determined the assessments of the Bills of Costs payable by the Pardhan Defendants to the Coca-Cola Plaintiffs, in paragraphs [30], [36] and [37]to be $6,479.63, $986.29 and $852.79 respectively, for a total of $8,318.71. Both these amounts include all the assessable services, disbursements and GST I have allowed in the paragraphs above. When both amounts are set-off against each other ( $9,048.69 - $8,318.71 = $729.98), I have determined that $729.98 is payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.
[42] The Coca-Cola Plaintiffs' and Pardhan Defendants' respective Bills of Costs are assessed and allowed in the amount of $729.98 payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.A Certificate of Assessment is issued to the Pardhan Defendants for $729.98 payable by the Coca-Cola Plaintiffs to the Pardhan Defendants.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
January 18, 2006
Toronto, Ontario
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