Date: 20101007
Docket: T-828-08
T-244-07
Citation: 2010 FC 1002
BETWEEN:
MICKEY COCKERILL AND
HARRY COCKERILL
Applicants
and
FORT MCMURRAY FIRST NATION #468
AND CHIEF ALBERT CREE, BERNADETTE DUMAIS
AND NANCY CREE
Respondents
Docket: T-244-07
AND
BETWEEN:
BETTY WOODWARD
Applicant
and
CHIEF AND COUNCIL OF THE FORT MCMURRAY
NO. 468 FIRST NATION AND THE
FORT MCMURRAY NO. 468 FIRST NATION
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment
Officer
[1]
These
Reasons apply accordingly to Federal Court file T-828-08 (the T-828-08 Matter)
and to file T-244-07 (the T-244-07 Matter). The Court by Amended Order
dated March 31, 2009, directed that the respective applications for judicial
review addressing the jurisdiction of a First Nation band to limit voting
rights to residents on its reserve and whether such a limitation violated the
right to equality in s. 15 of the Canadian Charter of Rights and
Freedoms would be consolidated for the purpose of hearing and would
be heard together or consecutively. Discrete solicitors of record
continued with conduct of the matters for the respective Applicants. The
Applicants in the T-828-08 Matter (the T-828-08 Applicants) served a notice of
a constitutional question. The Court on March 26, 2010 issued a single decision
dismissing both matters with costs. I issued timetables for written disposition
of the respective bills of costs of the Respondents.
[2]
Initially,
counsel common to the respective Respondents in these matters had assigned the
claims for counsel fee items 13(a) (preparation for hearing), 14(a) (attendance
at the judicial review hearing), 15 (preparation of written argument where
requested or permitted by the Court) and 24 (travel by counsel to attend the
hearing) solely to the bill of costs for the T-828-08 Matter to the exclusion
of the bill of costs for the T-244-07 Matter on the understanding that the
respective bills of costs would be reviewed together and the assessment
officer could apportion the costs accordingly. After counsel for the T-828-08
Applicants expressed concerns about that, counsel for the Respondents
indicated that these claimed costs should be split equally between the two
matters. The Applicants in the T-244-07 matter (the T-244-07 Applicants) conceded
the claimed disbursements of $3,507, which I find reasonable and allow as
presented.
I. The
T-244-07 Matter
A. Counsel Fees: Item
2 (preparation of Respondents’ record claimed at 7 units / available range =
4-7 units; hereafter, the numbers following the description of the fee item
represent the available Column III range of units in the Tariff); item 5
(preparation for the Applicant’s motion for an extension of time to perfect its
materials and for an interlocutory injunction claimed at 7 units / 3-7 units);
item 6 (appearance on the injunction motion claimed at 3 units per hour / 1-3
units per hour); item 5 (preparation for the Respondents’ motion to convert
this matter to an action claimed at 7 units / 3-7 units); item 6 (appearance on
the conversion motion claimed at 3 units per hour / 1-3 units per hour); item 8
(preparation for cross-examination of affiants claimed at 5 units / 2-5
units); item 9 (attendance on cross-examinations claimed at 3 units per
hour / 0-3 units per hour); item 10 (preparation for two pre-hearing conferences
claimed at 6 units for each / 3-6 units); item 11 (attendance on two
pre-hearing conferences claimed at 3 units per hour for each / 1-3 units per
hour) and item 26 (assessment of costs claimed at 6 units / 2-6 units)
(1) The Respondents’ Position
[3]
The
Respondents noted that the order dated April 12, 2007, which was silent on
costs, further to a hearing that day granted the extension of time sought
and adjourned the injunction hearing. The order dated April 24, 2007 further to
a hearing that day dismissed the motion for an injunction with costs in
the cause.
[4]
The
Respondents noted the case management conference convened on November 16, 2007
to discuss their motion and the ensuing direction dated November 19, 2007, that
the Applicant by December 14, 2007 serve and file a motion record in opposition
to or to confirm consent to the conversion motion. The Abstract of Hearing for
the hearing of the motion on April 10, 2008 indicates that it was adjourned
until April 18, 2008. The court record indicates that the hearing of the motion
occurred on April 18, 2008, was not completed, was adjourned to May 28, 2008,
and was subsequently set for and completed on June 6, 2008, resulting in an
Order dated June 23, 2008 giving directions on the adduction of evidence and
steps to complete the judicial review and awarding costs in the cause.
[5]
The
Respondents asserted that the duration claimed for each attendance above resulted
from the rounding up to the closest hour of the durations recorded in the court
file, i.e. 6, 23, 20, 5, 90 and 15 minutes respectively to reasonably
account for waiting for the hearing to commence and executing its result and
also because the tariff calculation for fee item 6 is expressed per hour. The assignment
of 3 units per hour at $130 per unit gives $390 per hour which is the
value closest to lead counsel’s billing rate of $325 per hour, a rate
consistent with partners at larger firms in Saskatchewan and Alberta. Although
some of the preparation was not complex and involved consent, an appearance was
still required. Fee item 5 was claimed only twice to account for the absence of
complexity of some motions.
[6]
The
Respondents argued that 5 units for fee item 8 equates to approximately 3 hours
of preparation time at the reasonable hourly rate of $195 for associate counsel
(Edmonton). Measured against lead counsel’s billing rate, it equates to a still
reasonable result of 2 hours for preparation for the cross-examinations. The 6
units claimed for fee item 9 did not include the necessary travel time between Edmonton and Fort
McMurray,
but only the actual attendance time.
[7]
The
Respondents argued that although the material filed for a case conference was
not a brief of law, real case management work was still necessary including
convincing the Court that the same Judge should hear both matters. Given that
no formal memoranda of law were filed, the Respondents conceded that the 12
units claimed for fee item 10 could be reduced to 8 units. The Respondents
argued as above for fee item 6 that the fee item 11 durations recorded in
the court file were rounded up to one hour.
[8]
The
Respondents noted that the duration recorded in the court file for the judicial
review hearing was 11 hours 40 minutes which, as above, was rounded up to 12
hours for the fee item 14 calculation. It was necessary for Respondents’
counsel to travel from his Saskatoon base to the hearing venue in Edmonton.
II. The
T-828-08 Matter
A. Counsel Fees: Item
2 (preparation of Respondents’ record claimed at 7 units / 4-7 units); item 5
(preparation for the Respondents’ motion appealing the Prothonotary’s decision
refusing an extension of time to serve responding affidavits and to conduct
cross-examinations claimed at 7 units / 3-7 units); item 6 (appearance on
appeal motion claimed at 3 units per hour / 1-3 units per hour); item 13(a)
preparation for hearing of the judicial review claimed at 5 units / 2-5 units);
item 14(a)(attendance at court claimed at 3 units per hour / 2-3 units per
hour); item 15 (preparation of written argument where requested or permitted by
the Court claimed at 7 units / 3-7 units); item 24 (travel time of counsel to
the hearing venue claimed at 5 units / 1-5 units) and item 26 (assessment of
costs claimed at 6 units / 2-6 units)
B. Disbursements: Photocopies
at $0.25 per page ($2,843.75); travel costs ($745.49); Edmonton Registry Services January 16,
2009 ($28); on-line research ($350); long distance charges ($38.22); couriers
($243.99) and postage $18.34)
(1) The Respondents’ Position
[9]
The
Respondents noted relative to the fee item 5 and 6 claims that the Applicants’
counsel consented to an order a few minutes before the hearing. That late
resolution does not preclude entitlement to the legitimate costs for the work
to pursue the motion to that point.
[10]
The
Respondents noted that counsel for the Applicants was advised by correspondence
dated April 22, 2010 that no costs were claimed further to the clients’
accounts dated October 15, November 15 and December 15, 2008 and January 15,
2009 (asserted by the Applicants to relate to an order for costs against the
Respondents and for consent matters). The Respondents did not include in their
bill of costs anything further to the Order dated October 6, 2008 (addressing
an extension of time) to compensate for the fact that it awarded costs to the
Applicants, which the latter have not attempted to collect. If an assessment
officer thinks that the Applicants are entitled to pursue those costs, they
must do so formally under the Rules.
[11]
Alternatively,
the Respondents argued that the Applicants’ bill of costs, presented below for set-off
further to the October 6, 2008 Order, improperly claims a cost, i.e. fee item 1
(Applicants’ Record), which is part of the substantive judicial review process,
but not part of this motion process. As this motion was simple and did not
require extensive materials, the claimed maximum of 7 units for item 5
(preparation) is excessive. As well, the disbursements are claimed from the
date of institution (May 27, 2008) of the judicial review until September 24,
2008. As the applicable motion was not filed until September 23, 2008, none of
the claimed disbursements totalling $644.92 were applicable to its time period except
$147.50 (photocopies) and $19.42 (registered mail) for a total of $166.92.
[12]
The
Respondents argued as above that the 12 hours claimed for fee item 14(a) were
predicated on rounding up the 11 hours 40 minutes hearing duration recorded in
the court file. The Applicants’ caselaw on the hourly rate of counsel is
irrelevant because it applies only to the Saskatchewan Court of Queen’s Bench
and to a chambers matter, which is very different in complexity from aboriginal
litigation in the Federal Court. As the Respondents’ Record included a memorandum
of fact and law, both fee items 2 and 15 are properly claimed.
[13]
The
Respondents asserted that the $4,267.79 claimed for disbursements were relevant
and related solely to the T-828-08 Matter. Their timeline matched that of
the T-828-08 matter. The Respondents argued that the results of research
deemed necessary and prudent at the time should not be discounted simply
because it was not ultimately used. The practice by the Respondents’ counsel is to
bill on the 15th of the month following the month in which the
solicitor’s work occurred. Therefore, research work would occur before a motion
record is filed, but would not be billed until the following month.
III. The Applicant’s
Position on the T-244-07 Matter
[14]
The
Applicant argued that the actual total duration for the motions was 191 minutes
or approximately 3.2 hours. The effect of the Respondents’ round-up approach is
exponential and results in the exorbitant rate of $850 per hour. The client
accounts in the evidence are of no comparative assistance because they do not
disclose the hours billed nor the billing rate. Both motions were not complex,
involved well-known legal principles, were essentially determined further to
written materials, and in the case of the latter motion went on consent.
Therefore, the fee item 6 claim of 21 units should be reduced to 7 units.
[15]
The
Applicant argued that although this judicial review was unusual for having
permitted oral evidence, the cross-examination itself was routine. Therefore,
the fee item 8 claim should be reduced to 3 units. Similarly, the fee item 9
claim should be reduced to 2 units per hour.
[16]
The
Applicant argued that the fee item 10 claim should be completely disallowed
because the July 17, 2007 conference addressed the filing and timing of the
conversion motion, lasted 14 minutes and did not require a memorandum of fact
and law. The March 12, 2009 conference discussed the scheduling of the judicial
review hearing, resulted in a consent order, did not require a memorandum
of fact and law and lasted 18 minutes. As the subject matter of each conference
was straightforward, fee item 11 should be reduced to 1 unit per hour or 2
units in total.
[17]
The
Applicant argued generally that the Respondents’ bill of costs should be
reduced by 34 units to 43 units x $130 per unit = $5,590 to which could be
added $3,507 (disbursements) for a total allowance of $9,097.
IV. The
Applicants’ Position on the T-828-08 Matter
[18]
The
Applicants noted that the October 16, 2008 Order granted the Respondents’
request for an extension of time to appear and file their Record, but otherwise
dismissed the motion with costs to the Applicants. The Respondents’ Statements
of Account noted above all relate to either orders for costs against the
Respondents or for matters on consent thereby precluding the fee item 5 and 6 claims,
as well as any associated disbursements. The Applicants presented in their
reply materials a bill of costs for $2,464.92 further to the October 6, 2008
Order for set-off against any assessed costs of the Respondents.
[19]
The
Applicants argued that the actual sitting time for the judicial review was less
than 9 hours meaning that the maximum fee item 14(a) claim would be 27
units and not the 36 units claimed. The Applicants argued further to Agracity
Ltd. et al. v. Ashley M. Skinner et al. 2010 SKQB 123 (Q.B.) [Agracity]
that 27 units exceed the appropriate indemnification for the Respondents’ Saskatchewan counsel with
approximately 12 years experience. The counsel mentioned in Agracity
billed at hourly rates of $278.36 (26 years experience); $300 (33 years) and
$275 (24 years). The rate of 3 units per hour equates to $390 per hour.
Solicitor-client costs are not appropriate here nor are costs beyond that
level. The maximum for fee item 14(a) should be 16 units to be further reduced
to reflect the actual hours (6 hours 22 minutes excluding lunch per transcript
time docket) and the appropriate indemnification for a 12 year call to the bar.
[20]
The
Applicants argued that fee item 15 cannot be assessed in addition to fee item 2
given that there was no additional written argument. Nothing should be allowed
for fee item 26 and counsel fees should not exceed $3,640.
[21]
The
Applicants argued that the timeline of the disbursements must match that of the
litigation. Factoring out all disbursements prior to February 15, 2009 leaves
only photocopies ($1,849), telephone ($28.82) and couriers ($67.17) for a total
of $1,942.99. Much of the on-line computer research addressed “solicitor
conflict and disqualification” (September 2008), which was not an issue raised
before the Court. Work on March 18, 2009, i.e. “researching motion record”
occurred after service of the Record. The research in July 2009 apparently on
Federal Court procedures is simply not a valid assessed cost.
[22]
The
Applicants argued that the Respondents’ fees plus disbursements should be
assessed at no more than $5,582.99 to be further reduced and set off
against the Applicants’ bill of costs for $2,464.92 leaving a net amount of
$3,118.07.
V. Assessment
[23]
In
Biovail Pharmaceuticals Canada v. Canada (Minister of
Health and Welfare), [2009] F.C.J. No. 858 (A.O.) [Biovail 2009],
I considered the circumstances of two matters with separate records and which
had not been consolidated, but for which separate judgments issued with
separate awards of costs further to a single hearing. There, the judgment
limited the successful party to a single hearing fee. In paragraphs 25 and
26 of Biovail 2009 above, I considered factors such as varied allowances
for a counsel fee item claimed in each matter and costs as an indemnity. The circumstances
here were different, but similar considerations may apply because, as I
concluded in paragraph 26 of Biovail 2009, costs “are an indemnity
and not a windfall or source of profit” and a litigant “cannot claim twice
for the same occurrence.” I did not below give the weight sought for Agracity,
but I did find it useful, i.e. para 26 on costs as an instrument of policy in
the efficient and orderly administration of justice; para. 32 on the relative
professional skills and efficiency of counsel etc., in my considerations and
resolutions of the issues before me.
[24]
I
concluded in paragraph 7 of Starlight v. Canada [2001]
F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the Tariff
need not be used as each fee item for the services of counsel is discrete
and must be considered in its own circumstances. As well, broad distinctions
may be required between an upper versus lower allowance from available ranges.
[25]
My
findings in Halford v. Seed Hawk Inc. (2009), 69 C.P.R. (4th)
1, [2006] F.C.J. No. 629 (A.O.), Biovail Corp. v. Canada (Minister of
National Health and Welfare) (2007), 61 C.P.R. (4th) 33,
[2007] F.C.J. No. 1018 (A.O.) [Biovail], aff’d (2008), 64 C.P.R. (4th)
475, [2008] F.C.J. No. 342 (F.C.) and Abbott Laboratories v. Canada
(Minister of Health) (2008), 66 C.P.R. (4th) 301, [2008] F.C.J.
No. 870 (A.O.) [Abbott] set out my views on the threshold of proof for
categories of costs and my approach to their assessment. Paragraphs 68 to 72
inclusive of Abbott above summarize the subjective elements and the
notion of rough justice in assessments of costs. In paragraphs 38 to 40 of Aventis
Pharma Inc. v. Apotex Inc., [2009] F.C.J. No. 56 (A.O.) [Aventis 2009],
I reinforced my view that an assessment of costs should reflect the reality of
the demands of litigation. I endorse the practical approach in paragraph 69 of Merck
& Co. v. Canada (Minister of Health), [2007]
F.C.J. No. 428 (A.O.) aff’d on its point and others, but varied on others
[2007] F.C.J. No. 1337 (F.C.). Paragraph 14 of Merck & Co. v. Apotex
Inc. (2009), 73 C.P.R. (4th) 423, [2008] F.C.J. No. 1656
(F.C.A.) held that “in view of the limited material available to assessment
officers, determining what expenses are “reasonable” is often likely to do no
more than rough justice between the parties and inevitably involves the
exercise of a substantial degree of discretion on the part of assessment
officers.” This practice of rough justice does not, however, require an
assessment officer to approve any and all claimed items of costs without question.
Disallowances or reductions often occur. I have generally held that a paucity
of evidence may result in conservative allowances.
A. The
T-244-07 Matter
[26]
I
addressed duration issues for fee items 9 and 14 in paragraphs 32 to 37
inclusive of Aventis 2009. I have found persuasive in the past proffered
calculations for those fee items which left recesses untouched, but which
factored out lunch breaks. I held in paragraph 9 of Mercury Launch & Tug
Ltd. v. Texada Quarrying Ltd., [2009] F.C.J. No. 390 (A.O.) that “I
consider abstracts of hearing as a useful, but not absolute, guide for
assessing attendance at hearings which may have had a mix of shorter or longer
breaks for recesses and lunch” and that “I consider time getting settled in the
courtroom just prior to commencement as part of assessable hearing time as
opposed to preparation time within the meaning of fee items 5 for motions or 13
for trials.” Costs are an indemnity and not a windfall. I have held that the
provision in Tariff B2(2) that “an assessment officer shall not allocate to a
service a number of units that includes a fraction” does not preclude the use
of fractions of hours where obviously appropriate for hearing durations. For
example, Tariff B2(2) would prevent me from allocating 2.5 units per hour
from the available Column III range of 2-3 units per hour for fee item 14(a).
However, once I had for example allocated 3 units per hour to that
service, Tariff B2(2) would not preclude the use of, for example, 0.5 hours in
the fee item 14(a) calculation further to a 25 minute appearance to give a
result of 1.5 units x $130 per unit for an indemnity of $195.
[27]
The
April 12, 2007 Order indicates that the Respondents took no position on the
extension of time. The abstract of hearing shows 6 minutes for the hearing that
day. I allow 0.3 hours. I allow 0.55 hours for the 23 minutes shown in the
abstract of hearing for the April 24, 2007 hearing. I have previously held that
when I think that the available choices of, for example 1, 2 or 3 units per hour
under fee item 6 do not adequately reflect the appropriate indemnification, I
can apportion them by, for example, applying 2 units per hour to certain
hours and 3 units per hour to the balance of hearing hours: see para. 8 of
Inter-Church Uranium Committee Educational Co-Operative v. Canada (Atomic
Energy Control Board), [2006] F.C.J. No. 1204 (A.O.) and para. 10 of Biovail
above. Here, I assess the total of 0.85 hours at 3 units per hour. The
Applicant’s materials did not object to the two fee item 5 claims: I allow them
as presented.
[28]
The
court record indicates that the November 16, 2007 appearance was scheduled as a
case management conference. It lasted 20 minutes and addressed the
scheduling of the conversion motion. The fee item 5 and 6 claims associated
with its costs might more properly have been advanced under fee items 10 and
11, but since the Applicant did not raise this and the respective available
ranges are comparable, I have simply addressed it under fee items 5 and 6. I
allow 0.5 hours. The durations recorded respectively in the abstracts of
hearing for April 10 and 18 and June 6, 2008 were 5 minutes, 1.5 hours and
15 minutes, which I allow respectively at 0.2, 1.8 and 0.5 hours respectively.
The total hearing time allowed is 3 hours which I assess at 3 units and 2 units
per hour respectively for 2 hours and 1 hour.
[29]
In
Notice of Compliance matters such as Abbott above, Fournier Pharma
Inc. v. Canada (Minister of Health), [2008] F.C.J. No. 1151 (A.O.) [Fournier],
Aventis Pharma Inc. v. Apotex Inc., [2008] F.C.J. No. 1238 (A.O.) and Aventis
2009 above, I had access to and used materials such as the Notice of
Allegation, the respective memoranda of fact and law and expert reports and
transcripts and other evidence of the parties, the associated cross-examinations
of affiants and the reasons for judgment after trial to gauge the effort
demanded of counsel and the appropriate amounts for counsel fees and
disbursements required to advance the positions of the parties as the litigation
unfolded. I read comparable materials in the record for this matter, including
the respective transcripts of the cross-examination of the Applicant (10
minutes on February 27, 2009) on her affidavit and of Johanna Cheecham (20
minutes on February 27, 2009) on her affidavit for the Respondents. Counsel for
the Respondents felt compelled to object during the latter cross-examination to
certain questions and refused (page 6) to give an undertaking concerning the
number of members and electors. I think that more of the professional skill of
the Respondents’ counsel was required for preparation than for the actual
appearance. There were two discrete cross-examinations for which the
Respondents claim a single fee item 8, which I allow as presented at 5 units.
Fee item 9 was claimed once for 2 hours. I allow it at the minimum 2 units per
hour for 1 hour.
[30]
I
reject the Applicant’s position that nothing be allowed for fee item 10. I do
agree that the associated work was straightforward. I accept the
Respondents’ concession of 8 units in total. The respective durations
(telephone conference calls) were 14 minutes on July 17, 2007, resulting in an
Order addressing the schedule of the conversion motion and 18 minutes on March
12, 2009, resulting in a consolidation and scheduling Order, for which the
Respondents claim 1 hour for each conference at 3 units per hour. I allow fee
item 11 at 1 hour in total at 2 units per hour.
[31]
As
discussed below, I add an apportioned allowance of 3 and 12 units respectively
for fee items 13 (preparation for hearing) and fee item 14(a) (appearance)
further to my conclusions below in the T-828-08 Matter.
[32]
The
Applicant’s calculation of units to be disallowed appeared to implicitly
concede the claims of 7 and 6 units respectively for fee items 2 and 26 as the
Respondents had to address the facts and issues for two discrete matters
and bills of costs. I will not interfere with item 2. However, my
disposition below for the T-828-08 matter indicates an allowance here of 4
units for fee item 26. The Respondents’ bill of costs, presented at
$13,517 is assessed and allowed at $12,288.50.
B. The T-828-08 Matter
[33]
Rule
400(1) provides that 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.” That reflects a basic principle that costs are in the sole discretion of
the Court and a successful litigant does not have an absolute entitlement to
costs. Generally, if that discretion is exercised, another principle is that
costs should follow the event. The Court in Thibodeau v. Air Canada, [2007]
F.C.J. No. 404 (F.C.A.) noted in paragraph 24 that the three-fold objective of
costs is to provide compensation, promote settlement and deter abusive
behaviour. The Court in Agracity above indicated in paragraph 19 that
there is no right to costs and noted caselaw in paragraph 26 characterizing
costs as an instrument of policy for the efficient and orderly administration
of justice.
[34]
The
October 6, 2008 Order addressed the Respondents’ motion seeking four heads of
relief, i.e. an extension to appear and a timetable for the filing of the
Respondents’ affidavits, for cross-examination of affiants and for filing of
the Record. Said Order granted an extension to appear and to serve and file
their Record, but otherwise dismissed the motion with costs to the Applicants.
I think that further to Genpharm Inc. v. The Minister of Health et al.,
[2003] 1 F.C. 402, [2002] F.C.J. No. 725 (F.C.A.) at para. 8, referring to Blueberry
River Indian Band
v. Canada (Department
of Indian Affairs and Northern Development), [2001] 4 F.C. 451,
[2001] F.C.J. No. 725 (F.C.A.) at para 38, that I can look at reasons of the
Court to determine the intent of an order. There were no reasons associated
with said Order, other than some brief comments in its preamble which were
silent on costs of the motion going to the Respondents. The disposition (November
27, 2008 as amended on January 12, 2009) of the appeal of said Order did not change
that result for costs.
[35]
An
interlocutory order silent on costs means that the hearing judge (for a trial,
a judicial review or an appeal) is not specifically vested with jurisdiction to
decide or vary costs of the motion associated with the interlocutory order: see
para. 73 of Abbott above and para. 26 of Fournier above. That is,
a consent judgment or otherwise on the substantive merits of litigation cannot
purport to vary interlocutory awards of costs unless the latter contained
express provisions to so permit. I disallow the fee item 5 and 6 claims and any
associated disbursements.
[36]
As
noted above, I have read the materials that were before the Court. I find that
these were not the most complex of matters. Discrete preparation was
required for each. If the Court as it sometimes does, had directed mid-range
costs, I could assign fractions of units, but that did not occur here. The
Respondents did not claim as they could have either of the 2 or 3 units
available for preparation under fee item 13(b) for the second day of hearing.
The total units available under fee items 13(a) and (b) are 8 units. I allow 3
units for each matter.
[37]
The
Applicants put in evidence an excerpt of the hearing transcript which indicates
that the first day of hearing commenced at 11:00 a.m. and ended at 3:16
p.m. Their evidence set out the breaks throughout. It indicates that the second
day concluded at 3:00 p.m. The abstract of hearing indicates that the first day
of hearing commenced at 9:30 a.m. and that the second day ended at 3:24 p.m.
These factors account somewhat for the difference between the approximations of
9 and 12 hours used by the Applicants and the Respondents respectively for
their fee item 14(a) calculations. The minutes of hearing indicate that the
hearing did indeed commence at 9:30 a.m. on the first day with the Court addressing
the schedule and calling a recess at 9:40 a.m. until 11:00 a.m. I think that 10
hours is a fair assignment in total. With due respect to Agracity, I
simply note that the intent of counsel fee ranges in Tariff B is to capture
partial indemnity. I am well aware of the effect of certain of its calculations
relative to full indemnity. I held above that I can assign a mix of units under
fee items 9 or 14 to achieve an appropriate assessed result. Here, I allow
6 and 4 hours at 2 and 3 units per hour respectively for a total of 24 units to
be apportioned equally between the two matters.
[38]
I
held in paragraph 40 of AstraZeneca AB v. Apotex Inc., [2009]
F.C.J. No. 1019 (A.O.) that fee item 15 was not intended as additional
compensation for fee item 2 work and that “the use in fee item 2 of the
adjective ‘a’ in conjunction with ‘respondents’ records and materials’
precludes additional compensation using other items such as fee item 15.” I
held similarly in paragraph 27 of Biovail 2009. I therefore disallow the
fee item 15 claim. I allow fee item 2 as claimed.
[39]
Further
to my comments in paragraph 3 of Abbott above, I disallow the fee item
24 claim as there must be a visible direction by the Court to the assessment
officer specifically authorizing fees for the time of counsel in transit. Such
a direction is not, however, necessary to assess essential and associated
travel disbursements, which I allow here as presented at $745.49, to place
counsel at the hearing venue, which might include those for second counsel
where relevant. Although the Applicants did not raise fee item 24 as an issue,
I disallow fee item 24 as there were no directions permitting it.
[40]
The
Respondents contributed to the efficiency of disposition of costs for this
matter by advancing an alternative argument on individual items should I permit
the Applicants to assess and set off their bill of costs, which I will. There
were discrete issues for the respective bills of costs of the Respondents which
justify a fee item 26 for each, but not for maximum values. I allow 4 units for
each matter. The Applicants did not claim fee item 26 and I am not inclined to
allow anything further to my discretion in Rule 408(3).
[41]
The
professional fee services outlined in the client Statement of Accounts up to
January 15, 2009 do seem to focus on motion activities, but the December 1,
2008 entry for researching “legal information regarding plaintiff’s theory of
liability; preparing for case management conference”, and there were few such
entries, could relate to the substantive issue of the judicial review. The
January 12, 2009 Order among other things set time limits for perfection of the
judicial review record including the completion of cross-examinations. The
February 15, 2009 client Statement of Account referred to work in January 2009
in that area. As the Respondents are entitled to assess the costs of the
substantive issues of the litigation, I do not accept the Applicants’ absolute
position that no costs prior to February 15, 2009 are assessable.
[42]
Paragraph
65 of Abbott above summarized my practice for photocopies including the
need “to strike the appropriate balance between the right of a successful
litigant to be indemnified for its reasonably necessary costs and the right of
an unsuccessful litigant to be shielded from excessive or unnecessary costs.”
The proof here was less than absolute. I allow $2,150.
[43]
I
allow Registry Services as presented at $28. The client Statements of Account
assist in discerning the timeline of disbursements relative to events in this litigation.
I allow postage as presented at $18.34. I allow long-distance tolls and
couriers at the reduced amounts of $30 and $135 respectively.
[44]
Paragraph
111 of Abbott above outlines my usual concerns with computer research.
As noted above, I should account for orders silent on costs. The September
2008 research concerning solicitor conflict and disqualification appeared to
address the removal of opposing counsel, as did some November 2008 research.
There was never a motion record advanced in the record or an order made
awarding any associated costs. I allow a reduced amount of $275.
[45]
I
think that the Respondents’ submissions were not impaired by the late notice of
the Applicants’ bill of costs. In practice, fee items such as 1, 2, 10, 11, 13,
14 etc are assessed and become payable further to judgment on the substantive
issues between the parties and not further to an interlocutory judgment. I
considered in paragraph 34 of Aird v. Country Park Village
Properties (Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) the notion of
the subheadings for the Columns in Tariff B relative to the construction of
counsel fee items in the context of Column III as a whole. Fee item 2 here
is clearly outside the timeline of the interlocutory award of costs to the
Applicants represented by the October 6, 2008 Order.
[46]
The
evidence in support of the claimed disbursements of photocopies ($463.75),
filing fee ($50), long-distance tolls ($2.18), facsimiles ($95.64) and
postage ($33.35) included a typical office computer program of listings by
category affording little, if any, information on purpose and relevance.
The institution of this matter on May 27, 2008 required a filing fee of $50, a
disbursement clearly beyond the scope of this interlocutory award of costs.
Such import of expenses into interlocutory timelines is common, but cannot
stand. I disallow fee item 1. I allow 4 units for fee item 5. I allow $200 for
disbursements, a result somewhat in line with the Respondents’ suggestion of
$166.92.
[47]
A
Certificate of Assessment in the usual format will issue for the T-244-07
matter. The Respondents’ bill of costs for the T-828-08 matter, presented
at $14,147.79, is assessed and allowed at $6,761.83. The Applicants’ bill of
costs for the T-828-08 matter, presented at $2,464.92, is assessed and allowed
at $720. A Certificate of Assessment for the T-828-08 matter will issue as
follows:
I HEREBY
CERTIFY that the costs of the Respondents, presented at $14,147.79, are
assessed and allowed at $6,761.83.
I HEREBY
CERTIFY that the costs of the Applicants, presented at $2,464.92, are assessed
and allowed at $720.
SET-OFF
I HEREBY CERTIFY that $720, the
assessed costs of the Applicants as against the Respondents, are set off
against the assessed total above of $6,761.83 for the Respondents giving a net
amount of $6,041.83 payable by the Applicants to the Respondents.
“Charles
E. Stinson”
DATED
at Vancouver, British Columbia, October 7, 2010
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