Aird v. Country Park Village Properties (Mainland) Ltd., 2005 FC 1170

Date: 20050825

Docket: T-1849-01

Citation: 2005 FC 1170

BETWEEN:

                                                                                                                                             Plaintiffs

                                                                         - and -

                                                                                                                                           Defendant

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                Country Park Village is a residential park situated on the Skowkale Indian Reserve near Chilliwack, British Columbia. A head lease allowed the Defendant to operate, via subleases, a number of modular type residences. The Plaintiffs, as sublessees or otherwise, became unhappy with rental rates and joined together in this action. The trial lasted 11 days. The Reasons for Judgment dated April 13, 2004 (hereafter the "trial decision") addressed three main issues: fair market rent for a four-year period, the requirement to account for additional rent overcharges and the requirement to provide recreational vehicle storage free of charge. Paragraph [128] of the Trial Decision noted that "success has been somewhat divided", but that the "plaintiffs have prevailed on most issues." The Court's judgment deferred the matter of costs and directed further submissions. The Court's Reasons for Order and Order dated June 30, 2004 (hereafter the "costs decision") awarded the Plaintiffs their costs throughout at the mid-range of Column III of Tariff B.

[2]                The costs decision, in my view, represents commentary useful for this assessment of costs and for matters of costs generally:

[6]            Costs should be neither punitive nor extravagant. It is a fundamental principle that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party... As a general rule, costs should follow the event. Absent an abuse of process, a successful plaintiff should not be penalized simply because not all the points advanced by the plaintiff have found favour with the court... Regarding the importance and complexity of the issues, it is the legal significance and complexity, including the number of issues, that are to be considered and not the factual subject matter....

[9]            The issues in this action were not complex. Aside from contractual interpretation, the matter was factually driven. In terms of the above noted issues, the plaintiffs were successful in relation to all but two subsidiary issues. Both of those issues dealt with the method of allocation of costs....

[10]          Regarding the expert appraisers' evidence, the court found neither of the appraisals to be entirely satisfactory. I will not grant the defendant's request for a direction that the plaintiffs' costs regarding their expert should be denied or reduced. The plaintiffs' expert used four different approaches to determine the fair market rent because, in his opinion, the subject property was unique and there were not many reliable comparables. One of his methods was the same as that chosen by the defendant's expert and ultimately by the court - the direct comparison approach. The defendant's appraiser's report had its own deficiencies and it cannot be said that it was "accepted".

[11]          Awarding costs is not a science. In my view, the court is required to have regard to the factors set out in Rule 400(3) to ensure that costs are awarded in accordance with the principles discussed earlier herein. A microscopic dissection or analysis of each subsidiary issue argued is neither necessary nor appropriate....

[3]                I issued a timetable for written disposition of the Plaintiff's bill of costs. The Defendant, as was its right, sought cross-examination of affiants of the supporting affidavits and the timetable was modified accordingly, resulting in among other things an amended bill of costs. The Defendant agreed to or took no position on counsel fee item 5 (preparation of the Plaintiffs' motion dated July 10, 2002, claimed at 5 units); items 8 and 9 (preparation for and appearance on the Defendant's oral examination for discovery on June 24, 2002, claimed at 3.5 and 7.5 units respectively); items 13(a), 13(b) and 14(a) (preparation for and attendance at trial, claimed at 3.5, 25 and 162.5 units respectively); item 23 (attendance at settlement conference, claimed at 6 units: I note that this service likely belongs under item 11, but the result would be identical); item 25 (services after judgment, claimed at 0.5 units); Quick Law ($85.46); couriers ($198.65); postage ($19.42); transcripts ($961.18, $130.33, $705.46 and $396.54); outside photocopying ($14.86); Tariff A hearing fees ($960.00); trial witness fees ($121.80) and subpoenas ($30.00). The Defendant argued that GST claimed should be reduced as a function of disallowances below.

Counsel Fees

Item 1: 5.5 units claimed for preparation of the statement of claim (available range 4 - 7 units: hereafter, the numbers in brackets following the description of the item of costs claimed represents the available range of units in the Tariff)

Item 3: 4 units claimed for preparation of the amended statement of claim (2 - 6)

[4]                The Defendant argued that item 3 is not allowable because it contemplates an amendment in answer to an amended pleading. Given the comment in the costs decision that this matter was not complex, the 5.5 units claimed for item 1 is sufficient.

[5]                The Plaintiffs noted generally for these items and other items in the amended bill of costs that their law firm's 17 separate correspondence files and forty boxes of further materials indicate the magnitude of this case. The imposition by the Defendant, after institution of this action, of a storage fee for recreational vehicles necessitated the amendment. Otherwise, the Plaintiffs would have had to commence a new action, a requirement inconsistent with Rule 3 relative to the "just, most expeditious and least expensive determination of every proceeding on its merits."

Assessment

[6]                The trial decision at paragraph [114] was critical of certain actions by the Defendant concerning recreational vehicle storage. However, the ordinary grammatical sense of item 3, "... where the amendment is necessitated by a new or amended...pleading...of another party", is that its allowance here is contingent on the Defendant having first amended its defence, in turn leading to the amended statement of claim. This did not happen. The Plaintiffs did receive leave to amend and the Court subsequently directed that the Defendant could amend its defence as a consequence of the amended statement of claim. These circumstances do not fit the parameters of item 3 and I therefore, with reluctance, disallow the 4 units claimed. I allow 5.5 units claimed for item 1 (the wording of the costs decision permits, in my view, an exception to Tariff B2(2) concerning fractions of units).

Item 5: 5 units claimed for preparation of the Plaintiffs' motion for an injunction, directions for discoveries and production of documents, addition and deletion of parties and amendment of the style of cause (3 - 7)

Item 6: 12 units claimed at 2 units per hour for 6 hours for appearances on April 29 and June 13, 2002 (1 - 3)

[7]                The Defendant argued that success was divided and that written disposition would have sufficed. At least one of the resultant orders was silent as to costs. Item 5 should be disallowed or allowed only at the minimum 3 units. If anything is allowed for item 6, it should only be the minimum 1 unit per hour for 6 hours.

[8]                The Plaintiffs argued that their success is evident from the resultant orders and directions. The provision in the costs decision for "costs throughout" applies here. For elderly and sick Plaintiffs, this was an important event relative to their capacity to continue this litigation. The relief sought and allowed was complicated and extensive and justified an oral hearing.

Assessment

[9]                I give no weight to the Defendant's submissions concerning written disposition as an alternative approach. The April 29, 2002 order, which was silent as to costs, granted a number of what I would characterize as more straightforward heads of relief, ie. the changes to parties and the style of cause, provided directions for discoveries and adjourned the matters of injunction, productions and costs to June 13, 2002. The preamble of the June 13, 2002 order acknowledged the relief already granted and dealt with the remaining heads of relief, including the granting of costs of the application in the cause, notwithstanding the dismissal of certain other heads of relief. This means that the Defendant's position before me as to divided success is irrelevant, at least in terms of urging disallowance by me.

[10]            As for the Defendant's alternative position urging minimum allowances, the costs decision triggered the Plaintiffs' entitlement to costs of this motion. The use of the term, "costs in the cause", did not create circumstances comparable to paragraphs [8] to [10] inclusive in Rolls-Royce plc v. Fitzwilliam, [2004] F.C.J. No. 626 (A.O.). That is, the motions judge here did not defer disposition of the matter of costs of the motion to the trial judge, but rather awarded costs without restricting them to mid-range Column III leaving only the matter of to whom the costs were to go in the hands of the trial judge. Per my analyses in Webster v. Canada (Attorney General), [2003] F.C.J. No. 1652 (A.O.), Almecon Industries Ltd.v. Anchortek Ltd., [2003] F.C.J. No. 1649 (A.O.) at para. [17], Milliken & Co. v. Interface Flooring Systems (Canada) Inc., [2003] F.C.J. No. 1586 (A.O.) at para. [17], and Sawridge Band v. Canada, [2002] F.C.J. No. 1426 (A.O.), the Rule 400(1) jurisdiction of 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 entitlements to costs for interlocutory events for which the relevant interlocutory orders were silent on costs or specifically denied costs. The effect here of the motion judge's award of costs in the cause is to define and limit the role of the trial judge to the perfection of entitlement to these interlocutory costs, but not to permit variance by the trial judge of said interlocutory award by such means as mid-range Column III, solicitor-client costs or a different Column. Put another way, once the motion judge issued his order for costs in the cause without a modifier per Rule 407 varying the general default parameters of Column III, ie. for something such as mid-range Column III, the Court, be it the motion judge or the trial judge, was functus. Therefore, the term "throughout" in the costs decision cannot be applied to vary the disposition of the motion judge by restricting the allowance to mid-range Column III. From a different perspective, I think that this conclusion is reinforced by noting that assessment and recovery of interlocutory awards of costs do not always need to await judgment after trial: see the analysis of "forthwith" provisions in Culhane v. ATP Aero Training Products Inc. [2004] F.C.J. No. 1810 (A.O.).

[11]            Essentially, the Defendant's alternative position for minimum allowances urges consideration per Rules 409 and 400(3)(a), ie. the result of the proceeding. I allow 4 units and 1 unit per hour for items 5 and 6 respectively.

Item 5: 5 units claimed for preparation in reply to the Defendant's motion to vary or vacate the injunction (3 - 7)

[12]            The Defendant argued that its success in having the injunction varied means that the associated interlocutory award of costs in the cause should preclude any allowance here. The Plaintiffs relied on their position above concerning the meaning of "costs throughout".

Assessment

[13]            Per my analysis above of the term "costs in the cause", I give no weight to the Defendant's position. I cannot vacate this interlocutory exercise of the Court's discretion under Rule 400(1) for costs. I have examined the associated motion materials advanced by the parties and the decisions of the Court. I allow the 5 units claimed.

Item 5: 5 units claimed for preparation of the Plaintiffs' motion to vary the injunction (3 - 7)

Item 5: 5 units claimed for preparation of the Plaintiffs' motion for an extension of time to file materials in response to the Defendant's motion record (3 - 7)

[14]            The Defendant argued that, as these motions were dismissed with costs in the cause, nothing should be allowed or, in the alternative, the allowance for each should be the minimum 3 units. The Plaintiffs relied on the submissions above concerning "costs throughout".

Assessment

[15]            My conclusions above apply. I have examined the associated motion materials of the parties and the decisions of the Court. I allow 5 and 3 units respectively.

Item 5: 5 units claimed for preparation of the Plaintiffs' motion to vary the order dated August 1, 2002, for late filing of the Amended Statement of Claim (3 - 7)

[16]            The Defendant argued that, as no costs were awarded on this motion, nothing should be allowed. The Plaintiffs relied on their submissions above concerning "costs throughout".

Assessment

[17]            The August 1, 2002 order awarded costs to the Plaintiffs, but the September 23, 2002 order was silent as to costs. That the later order varied the earlier order does not mean that the reach of the award of costs in the earlier order can be extrapolated forward as authority to claim costs for the later order, ie. by adding to the later order a disposition of costs simply on the basis of some nexus between the two orders. Per my conclusions above and in Balisky v. Canada (Minister of Natural Resources), [2004] F.C.J. No. 536 (A.O.) at para. [6], I have no authority to assess costs in the face of an order silent as to costs. I therefore disallow the 5 units claimed.

Item 7: 3.5 units claimed for each of 123 Plaintiffs (totalling 430.5 units) for discovery affidavit of documents (2 - 5)

[18]            The Defendant noted that the trial judge's November 15, 2004 order refused the Plaintiffs' application for increased costs for this item. Most of the affidavits of documents were in the standard format with handwritten lists attached, apparently prepared by the clients as opposed to their counsel. More than sixty percent of them were sworn on the same day. If there is to be a separate assessment for each Plaintiff, anything more than the minimum 2 units for each would be contrary to the views of the trial judge per the above order.

[19]            The Plaintiffs argued that, as the Defendant had required each Plaintiff to produce an affidavit of documents, it was a very time consuming process to properly instruct such a large group of elderly people. Regardless of a standard format, this required counsel to be satisfied that each Plaintiff, before execution, understood the content requirements, including the parameters of production of only relevant and non-privileged material. Affidavits were sworn on various other dates.

Assessment

[20]            The grounds for the motion for increased costs, ie. that item 7 should be increased as a function of the necessity to create 123 affidavits, was met with a preamble in the November 15, 2004 order noting the costs decision limiting costs to mid-range Column III and that said motion was nothing more than an application for variance as opposed to directions. The Court therefore dismissed it. That is not, as the Defendant asserted, the Court expressing the view that an item 7 claim may not be assessed for each Plaintiff. Rather, the Court appears to simply have found that it was functus. In my view, and consistent with my conclusions above, I may allow item 7, but at the mid-range of Column III only. Rules 405 and 407 grant me the jurisdiction to decide which items are assessable, including how many times a given item may be claimed.

[21]            Before turning to the specifics of item 7, I note with interest that the trial judge, in dismissing the motion for increased costs for item 7, relied on her own decision in AB Hassle v. Genpharm Inc., [2004] F.C.J. No. 1087 (F.C.) dated June 22, 2004. In AB Hassle, supra, she was faced with a motion for directions to the assessment officer that costs be assessed at the high end of Column V. Her judgment, already issued, had awarded "costs throughout...to be taxed on the ordinary scale...." After careful analysis of the authorities, she concluded that she had no jurisdiction to interfere with the terms of her own judgment already rendered. The timing of that conclusion, about one week prior to the costs decision here, indicates to me that she was surely aware of her lack of jurisdiction to interfere with the terms of an interlocutory judgment already rendered by a judge other than herself. This simply reinforces my conclusions above concerning the effect of the term "throughout". She knew that she could not vary the "costs in the cause" motion awards to mid-range Column III costs in the cause.

[22]            Item 7 may be claimed more than once as a function of the circumstances: see Early Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn., [2001] F.C.J. No. 1666 (A.O.). If each Plaintiff had asserted a cause of action via discrete proceedings, as was their right, each could have claimed an individual item 7, as well as other items. The grouping of discrete causes of action in a single proceeding has precluded, to the Defendant's benefit, multiple claims for services such as item 14, ie. meaning only one counsel at trial on behalf of 123 Plaintiffs. However, the Defendant must concede that the circumstances here may warrant multiple claims for given items as a function of the discrete interests of Plaintiffs. I think that the discovery process is a typical example because, although the submissions at the hearing of the trial may have represented certain common interests of litigants joining together to challenge the Defendant's conduct via a single Statement of Claim, the genesis of each cause of action may have been rooted in dissimilar facts. I allow the 3.5 units claimed for each of 123 Plaintiffs.

Item 8: 3.5 units claimed for each of 9 Plaintiffs (totalling 31.5 units) for preparation for their oral discoveries in 2002 (2 - 5)

Item 8: 3.5 units claimed for each of 108 Plaintiffs (totalling 378 units) for preparation for their written examinations for discovery (2 - 5)

Item 8: 3.5 units claimed for preparation for the Defendant's written examination for discovery (2 - 5)

Item 8: 3.5 units claimed for preparation for each of two days (February 2 and May 3, 2005) for the cross-examination of Danny Grant (the Plaintiffs' expert) on his affidavit sworn in support of his account (2 - 5)

Item 9: 18.75 units claimed for attendance of 12.5 hours at 1.5 units per hour in 2002 on the discoveries of 9 Plaintiffs (0 - 3)

Item 9: 2.5 units (NOTE: should be 2.25 units) claimed for attendance of 1.5 hours at 1.5 units per hour on each of the two days of cross-examination of Danny Grant on his affidavit (0 - 3)

[23]            The Defendant noted that the Court had limited each oral examination to 1.5 hours and the costs decision at paragraph [9] stated that this litigation's issues were not complex. The Plaintiffs are entitled to item 8 for each oral examination, but at the minimum 2 units. The Defendant argued that item 8, read with item 9, is not intended to apply to written examinations. Although guidance and advice of counsel was necessary, the questions and answers and any associated work were standardized and therefore 3.5 units ($385.00 for each affidavit) is inappropriate and inconsistent with the comments above in paragraph [6] of the costs decision concerning costs as a compromise, ie. neither punitive nor extravagant. If something is allowed, it should be under item 27 at 1 unit per affidavit. These submissions apply as well to the Defendant's written examination. The Defendant argued that the cross-examination of Danny Grant, being further to the Assessment Officer's direction, was part of the assessment process and therefore item 8 and 9 claims are precluded because all associated costs belong under item 26 (assessment of costs). For item 9, the Defendant conceded the hours claimed for the oral examinations, but argued for the reasons above that an allowance of 1 unit per hour would be appropriate.

[24]            The Plaintiffs argued that the costs decision precludes my jurisdiction to deviate from mid-range Column III for either items 8 or 9. The Defendant failed to appeal from the mid-range Column III prescription and therefore cannot now argue for variance. The Plaintiffs asserted that the record discloses that the Defendants chose to issue 108 written examinations for discovery. This language in item 8, "preparation...including examinations for discovery...", embraces written discoveries and the record discloses that the Defendant's solicitor acknowledged that in the documents issued. The same submissions apply to the Defendant's written examination. The Plaintiffs argued that items 8 and 9 are appropriate for the cross-examination of Danny Grant because item 26 is restricted to preparation of the bill of costs and attendance on the actual assessment.

Assessment

[25]            I did not summarize above the parties' submissions on unjust enrichment as a function of costs as I did not find them relevant. As a matter of practice, Bills of Costs and Assessment, Federal Court Practice - 2003 update, September 19, 2003, the Continuing Legal Education Society of British Columbia, at item (viii) on page 10.1.09, indicates that circumstances may warrant multiple examinations on one side of litigation. Here, as noted above, the Plaintiffs may have had certain common interests arising out of their respective and discrete causes of action, but I think that the Defendant's counsel demonstrated sound professional judgment by insisting on discrete examinations. There are, however, associated costs consequences. Rule 234(1), providing for either oral or written examination for discovery, is the short answer to the Defendant's position on whether item 8 applies. I think that the work required of counsel for preparation would in certain respects be comparable to that for oral examinations. The Plaintiff's position on mid-range Column III is correct. I allow the items 8 and 9 claims for all discoveries as claimed.

[26]            The matter of the cross-examination of Danny Grant is more troublesome. If I compare these circumstances to, for instance, a party asserting its right to cross-examine the affiant of an adverse affidavit supporting a motion, I expect and have seen item 8 and 9 claims for such counsel services because that work is distinct from counsel services under items 5 and 6 for preparation of and attendance on the motion. I view the cross-examination here similarly. That I issued directions for timing did not transform the counsel services from something that I would ordinarily associate with items 8 and 9 to work ordinarily associated with item 26, such as the very arguments in the paragraphs immediately preceding concerning the admissibility in the amended bill of costs of these items. I allow items 8 and 9 as claimed for the cross-examination of Danny Grant on his affidavit, save for the arithmetic corrections noted above.

Item 10:                  4.5 units claimed for preparation for each of pre-trial conference (April 3, 2003), dispute resolution conference (December 5, 2003), trial management conference (December 19, 2003) and trial management conference (January 16, 2004) (3 - 6)

Item 11:                  10.2 units claimed for attendances totalling 5.09 hours at 2 units per hour on the four conferences (1 - 3)

[27]            The Defendant argued as above that the litigation issues, being mainly factually driven, were not complex. Much of the materials for the later conferences drew on those prepared for the April 3, 2003 conference, for which 4.5 units under item 10 are appropriate. However, item 10 allowances for the latter three conferences should be limited to 4, 4 and 3 units respectively. For similar reasons, each item 11 allowance should be limited to 1.5 units per hour. The Plaintiffs argued as above that the costs decision limits my jurisdiction to mid-range Column III.

Assessment

[28]            I allow items 10 and 11 as claimed.

Item 12:                  2 units claimed (totalling 12 units) for each of six of the Plaintiffs' Request to Admit dated variously in 2003 and 2004 (1 - 3)

[29]            The Defendant conceded that there were six separate requests to admit, but argued for a single and global allowance of 3 units to address the process itself, being simply admission of facts as represented collectively by the six documents. If allowed on a notice by notice basis, item 12 should be limited to the minimum 1 unit for five of these notices. Nothing should be allowed for the notice dated December 2, 2003 (addressing a denominator for the purposes of a certain clause of the subleases) because said request to admit was denied. Paragraphs 49 - 54 and 104 - 108 of the trial decision support said denial.

[30]            The Plaintiffs argued that the Defendant's position might have been arguable if the language of item 12 had been framed in the plural, ie. notices etc., instead of in the singular as it is, ie. notice etc. It does not and therefore the Plaintiffs are entitled to claim item 12 for each notice. The record discloses the extensive work required and associated with the isolation of issues in dispute. The Defendant's position concerning the December 2, 2003 notice is irrelevant because it ignores the purpose of this process, ie. to encourage steps to isolate issues truly in dispute.

Assessment

[31]            I accept the Plaintiffs' position on the meaning of item 12. There is nothing in the trial decision or the costs decision or any other pronouncement herein by the Court to suggest inappropriate conduct on the part of the Plaintiffs in advancing the December 2, 2003 notice. I allow each item 12 as claimed.

Item 15:                  5 units claimed (totalling 20 units) for preparation of each of written submissions on costs (June 11, 2004), supplemental written submissions on costs (reply June 21, 2004), written submissions on fair market rent and written submissions requested on the assessment of costs (May 26, 2005) (3 - 7)

[32]            The Defendant argued that there should be only a total single allowance of 5 units for the June 11 and 21, 2004 submissions. The Defendant conceded the fair market rent submissions. The Defendant argued that item 26 precludes the claim here for written submissions associated with this assessment of costs.

[33]            The Plaintiffs argued that paragraph [128] of the trial decision provided for two discrete written arguments on the matter of costs and therefore discrete item 15 claims are warranted. The Plaintiffs advanced the same argument as for item 12 above concerning the language of item 15 being framed in the singular as opposed to the plural.

Assessment

[34]            For reasons similar to those for item 12 above, I allow the item 15 claims for each of June 11 and 21, 2004. As for the May 26, 2005 document, I note the Interpretation Act, R.S., c. I-23, s. 1, providing at section 2(1) that "enactment" includes rules and tariffs or any portion thereof, at section 13 that preambles can be read as part of an enactment, and at section 14 that marginal notes at the end of a section form no part of an enactment. I do not think those provisions address the subheading in Tariff B, "E. Trial or Hearing", for items 13 (preparation), 14 (attendance) and 15. However, I construe those items in the context of Column III as a whole, and with regard to my conclusions at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No. 1376 (A.O.) that each fee item for the services of counsel is discrete and must be considered in its own circumstances. The process of assessment of costs is incidental to trial and is addressed discretely by item 26. Item 15 is not part of this assessment process and I therefore disallow it for the May 26, 2005 submissions. As well, given the definitions of court and assessment in ss. 4 and 5.1(1) of the Federal Courts Act and Rule 2 of the Federal Courts Rules respectively, I am not the "Court" as that term is used in item 15.

Item 24:                  57 units total claimed for travel by counsel for various purposes on various

dates (1 - 5)

Assessment

[35]            I have not summarized the respective positions of the parties concerning this claim. The Defendant conceded certain claims, but opposed others. The Plaintiffs argued generally that the provision in the costs decision for costs throughout applies to item 24. These submissions did not touch on my jurisdiction. However, the Defendant's opposition to at least part of this item 24 portion of the amended bill of costs leaves me in an awkward position because my comments above for item 15 concerning the meaning of the term "Court" apply equally here for item 24. The practice has been that an item 24 allowance must be a function of a visible exercise of discretion by the judge, ie. using language referring specifically to item 24 or to counsel's travel time.

[36]            With respect, the Plaintiffs' position on the meaning to be given the term "throughout" is untenable because that would catch any item, such as item 14(b) for second counsel which also requires a separate or special direction by the Court. That is, if the Plaintiffs' position is correct, the notion that items such as 14(b), 15 or 24 require an active direction of the Court becomes superfluous. I simply find it difficult to accept that the term "throughout" automatically catches all such items, particularly if counsel have not advanced submissions before the trial judge specifically addressing their admissibility in a bill of costs. I am generally reluctant to interfere in the absence of any issue between the parties, but there being no visible exercise here of the Court's discretion and this claim representing a considerable amount, I must disallow the 57 units claimed.

Item 26:                  4 units claimed for the assessment of costs (2 - 6)

Assessment

[37]            The Defendants had argued that any allowance should be a function of the degree of success on the assessment of costs. In the circumstances here, I allow the mid-range Column III claim of 4 units.

Disbursements

Facsimiles:                   $1,919.00 claimed for 1,919 pages at $1.00 per page

Photocopies:                $6,278.75 claimed for 25, 115 pages at $0.25 per page

Long distance tolls:      $674.50 claimed

Agents' fees:                $2,471.97 claimed for filing and service of documents

Transcripts:                  $88.00 and $93.00 claimed respectively for cross-examination of Danny Grant on his affidavit on February 2 and May 3, 2005

Witness fees at trial:    $105.00 claimed for R.B. MacLeod invoice concerning medical opinion on the Plaintiff, Archibald Ellis

[38]            The Defendant argued that disposition of the transcript costs should await the outcome of this assessment. The Defendant asserted that the record discloses that there were more detailed records apparently available for facsimiles, photocopies, long distance and agents' fees, but which were not produced consistent with Tariff B1(4). In these circumstances, there should be a reasonable allowance, but less than the amounts claimed. There is no evidence to support the R.B. MacLeod invoice.

[39]            The Plaintiffs, in rebuttal, advanced additional records and conceded that they indicated in some instances amounts differing from those in the amended bill of costs. The Plaintiffs asserted that the Court had required medical notes excusing individual Plaintiffs from the discovery or trial process. That was the purpose of the R.B. MacLeod invoice.

Assessment

[40]            My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608 that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", is that discretion may be applied to sort out a reasonable result for costs equitable for both sides. I think that my view is reinforced by the editorial comments (see: The Honourable James J. Carthy, W.A. Derry Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005 - 2006 (Aurora, On: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an assessment of costs is more of an art form than an application of rules and principles as a function of the general weight and feel of the file and issues and of the judgment and experience of the assessment officer faced with the difficult task of balancing the effect of what could be several subjective and objective factors.

[41]            The proof here is less than absolute. The less that evidence is available, the more that the assessing party is bound up in the assessment officer's discretion, the exercise of which should be conservative, with a view to a sense of austerity which should pervade costs, to preclude prejudice relative to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. I allow $1,450.00 and $525.00 for facsimiles and long distance tolls respectively. With particular regard to Canadian Union of Public Employees, Local 4004 v. Air Canada, [1997] F.C.J. No. 464 (A.O.), I allow $5,100.00 for photocopies. Consistent with my disposition above for item 26, I allow the transcript costs as claimed at $88.00 and $93.00.

[42]            The $2,471.97 claimed for agents' fees is again more troublesome. As a point of practice, the filing of additional evidence during rebuttal as here, which should have been led in the first instance as part of the Plaintiffs' case in chief, is not the proper approach. I permitted it in these circumstances as I felt it would not significantly affect my disposition of this matter. For example, invoice number 69437 addressed delivery of an envelope on January 22, 2004 to a Jim Moffat at #100 - 45918 Knight Road in Country Park Village. The record does not indicate what was in said envelope. Mr. Moffat did not testify. The abstract of hearing for the trial discloses that several Plaintiffs from several unit numbers at 45918 Knight Road, other than unit number 100, did testify. The record discloses that a blank subpoena was taken out on January 22, 2004 by the Plaintiffs. The agent who served Mr. Moffat that day was the same agent attending at the Registry on behalf of the Plaintiffs to pay for the subpoena (tariff receipt A365550 on the court file). The agent's invoice describes the delivery to Mr. Moffat as a letter for urgent delivery. The agent's note thereon indicated that an elderly male refused service, so the agent dropped the letter by his feet on the living room floor. By contrast, apart from the issue of the invoice not being advanced until rebuttal, invoice number 231622 for the filing in October 2002 of a request for pre-trial conference is much easier to gauge and accept. The invoice number 173872 to file a motion record on September 10, 2002 is problematic. This likely addresses the motion to vary the August 1, 2002 order for late filing of the Amended Statement of Claim for which, as I concluded above, no counsel fees are assessable. The same would be true of any associated disbursements such as agents' fees, photocopies, facsimiles, etc. I allow $1,925.00 for agents' fees.

[43]            The R.B. MacLeod invoice came in as part of the rebuttal evidence. From the sole perspective of amount, I think that my consideration of the reasonableness of $105.00 as a simple total of costs for such a service would have been similar with or without the benefit of an invoice or some sort of record. Further, although waiting until rebuttal to let details of the service provided trickle out was not appropriate, I think that there could have been little controversy about relevance. Certainly, hard evidence would have been preferable, but I am not inclined to refuse some sort of assessment. I allow the $105.00 as presented as I find that amount reasonable for the service performed.

Interwest Property Services Ltd. (provision of expert assistance and opinions concerning fair market rent:

$1,070.00 claimed for invoice number 2936 dated December 4, 2000

$5,139.36 claimed for invoice number 2945 dated January 29, 2001

$35,377.92 claimed for invoice number 3143 dated June 5, 2003

$21,433.13 claimed for invoice number 3229 dated July 12, 2004

$2,782.00 claimed for invoice number 3300 dated May 17, 2005

[44]            The Defendant argued that invoice numbers 2936 and 2945 should not be allowed because they address work performed long before institution on October 16, 2001 of this litigation. The Defendant noted that the time charges in invoice number 3143 are logged in 15 minute increments. Further, there are no underlying documents or alternatively only reconstructed records, none of which particularize the 155 hours claimed. Danny Grant does not keep time cards or records. Mr. Grant acknowledged that $10,000.00 to $12,000.00 would have been sufficient for a normal appraisal and investigation report and that there was no retainer or fee agreement between Interwest and the Plaintiffs. The Defendant noted that Mr. Grant is generally unable to isolate billings in invoice 3143 attributable to work prior to institution. As well, the available records indicate possible errors, ie. time estimates ranging from 4.5 hours to 11.5 hours to prepare certain letters or notes. Mr. Grant acknowledged that invoice number 3229 includes post-hearing work.

[45]            The Defendant noted that over $50,000.00, exclusive of disbursements and taxes, is claimed for this expert. By comparison, the Defendant's appraisal expert charged less than $20,000.00, of which $11,700.00 addressed trial preparation and attendance. A report, which was similar in length and detail to reports prepared by Interwest, prepared for the Defendant in another proceeding, cost less than $30,000.00. The Defendant argued that all of the above factors warrant a reduction, within the parameters of what was reasonably necessary to provide the appropriate expert assistance to achieve success, to something in the range of $20,00.00 for research, preparation and delivery of the report plus $11,500.00 for trial preparation and attendance (I note that this suggested breakdown departs from the form of the Defendant's example above, but that seems to be the ordinary reading of the Defendant's submissions)..

[46]            The Plaintiffs noted that invoice number 2936 (5 hours) addressed preparatory work for assessment of fair market rent as at March 1, 2000. Invoice number 2945 addressed further review of the headlease, various subleases, case law, appraisals and discussions and briefings with counsel. About one-third of the time claimed in invoice number 3143 addressed normal appraisal investigation and report preparation. The balance of the time claimed addressed work as a function of misinformation or lack of information from the Defendant. Invoice number 3229 addressed analysis, consultation and inspection trips associated with last-minute productions from the Defendant, trial preparation, including assisting counsel to prepare for the Defendant's experts, and attendance at trial, including analysis of other experts' testimony.

[47]            The Plaintiffs acknowledged that invoice numbers 2936 and 2945 address work prior to institution, but argued that, as said work was relevant for the expert opinion produced on fair market rent in this proceeding, they are assessable as litigation costs. The cross-examination of Danny Grant on his affidavit brought out evidence supporting the 155 hours in invoice number 3143.

[48]            The Plaintiffs argued that the circumstances facing Mr. Grant were not those of a normal appraisal investigation. For example, the Defendant had refused for a number of years to produce documents and accounting details underlying certain rental expense calculations essential to analysis of comparables. This greatly complicated the expert's task because that information had to be reconstructed via other difficult investigative means. The Defendant's argument that its experts' costs were lower is irrelevant because those experts would not have been faced with the same difficulty of access to essential information from the Defendant. As well, the Defendant's expert benefited by starting his research after two other appraisers had completed their work. Further, the Defendant's expert report did not acknowledge the actual and relevant variables identified by Plaintiffs' expert and was not nearly as extensive.

Assessment

[49]            I tend to accept the Plaintiffs' characterization of the task facing them. However, that does not mean automatic approval of the claimed invoices. I have assessed these invoices for experts' work consistent with my approach in Merck & Co. Inc. et al. v. Apotex Inc., [2002] F.C.J. No. 1116 (A.O.) affirmed by [2002] F.C.J. No. 1357 (F.C.T.D.) and Bayer A.G. et al. v. Apotex Inc. et al., [2002] F.C.J. No. 1693 (A.O.). The Plaintiffs' evidence does not, in my view, satisfactorily resolve the concerns raised about Mr. Grant's time logs. I do acknowledge that it is likely not cost-effective to create and maintain time logs offering the detail, to the penny, perhaps contemplated by the Defendant's position. I did find Mr. Grant's narrative of the work performed relative to each invoice to be very good.

[50]            A concern with costs claimed prior to institution of litigation is the extent of focus possible of the work to make it relevant for the pleadings and consequent disposition of issues to follow. My conclusions in Mitchell v. Canada (Minister of National Revenue - M.N.R.), [2003] F.C.J. No. 1530 (A.O.) confirm that costs associated with work prior to institution are assessable. I allow $650.00 and $3,175.00 for invoice numbers 2936 and 2945 respectively.

[51]            A major concern in assessing an expert's role, for the purpose of setting reasonably necessary litigation costs without lapsing into hindsight while doing so, is gauging the balance between work properly falling to supervising counsel, the costs for which the principle of partial indemnity significantly limits recovery, and work properly falling to the expert, the costs for which general principles of litigation indemnity permit essentially full recovery. As noted above, there are some concerns with the accounts, but I think as well there were circumstances supporting a somewhat higher allowance than one might ordinarily expect. I allow $28,500.00 for invoice number 3143.

[52]            Following the trial, but before the trial decision was rendered, the Court directed the parties to address certain issues with a view to achieving consensus. These matters appeared to warrant the assistance of the experts and the evidence confirms that work in that area was performed by Mr. Grant. I allow $17,000.00 for invoice number 3229.

[53]            The evidence is that invoice number 3300 for 13 hours at $200.00 per hour addressed Mr. Grant's charges to prepare for and attend on the cross-examination on his affidavit supporting his expert account. Those circumstances are similar to those for a litigant, ultimately unsuccessful, exercising the right to challenge via cross-examination at trial the evidence of an adverse expert and then having to indemnify the other side for the costs associated with the time of said adverse expert to undergo cross-examination. I allow the $2,782.00 as presented for invoice number 3300.

[54]            The Plaintiffs' bill of costs, presented at $246,960.45, is assessed and allowed at $216,906.61.

(Sgd.) "Charles E. Stinson"

      Assessment Officer             

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1849-01

STYLE OF CAUSE: TED AIRD et al.

- and -

COUNTRY PARK VILLAGE PROPERTIES

(MAINLAND) LTD.

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:         CHARLES E. STINSON

DATED:                                                           August 25, 2005

SOLICITORS OF RECORD:

Robertson, Downe & Mullally                                        FOR PLAINTIFFS

Abbotsford, BC

Boughton Law Corporation                                           FOR DEFENDANT

Vancouver, BC