Docket: T-1570-07
T-1571-07
Citation: 2012 FC 63
BETWEEN:
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SIMPSON STRONG-TIE COMPANY, INC.
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Applicant
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and
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PEAK INNOVATIONS INC.
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Respondent
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ASSESSMENT
OF COSTS - REASONS
Charles E. Stinson
Assessment
Officer
[1]
These
Federal Court matters were respective appeals of a decision of the Trade-Marks
Opposition Board [the Opposition Board] rejecting oppositions by the Applicant
to discrete trade-mark applications by the Respondent concerning respectively
the colours greyish-green and green relating to fastener brackets for attaching
deck boards. They were part of a series of 31 appeals by the Applicant of
Opposition Board decisions rejecting oppositions to 31 related trade-mark
applications by the Respondent.
[2]
The
Court, by way of a single decision dated November 23, 2009 [the Decision] found
that:
[77] In conclusion, for the reasons
above, I would dismiss the appeal by Strong-Tie.
[78] At the hearing of this matter,
the parties made submissions on costs. Peak asks the Court to award costs at a
higher scale due to the fact that this appeal was a “test case” for a number of
other appeals that are waiting for the results of this appeal. Strong-Tie
submitted that costs should be awarded at the usual scale of the middle of
column III of Tariff B. Strong-Tie specifically mentioned that its travel costs
should be taken into consideration.
[79] In my view, the complexity of
this matter does not warrant an award at anything other than normal scale –
that is, the middle of Column III of Tariff B. The existence of other possible
cases, for which costs can be awarded in due course, is not sufficient reason
to deviate from the usual tariff.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1. the appeal is dismissed; and
2. costs are awarded
to Peak, to be assessed in accordance with the middle of column III of Tariff
B.
I issued a timetable for written
disposition of the two bills of costs filed by the Respondent, one for each
matter respectively.
[3]
The
Applicant argued that the Court heard these matters together and treated them
as one appeal. There was no oral evidence nor were there experts involved. The
evidence was essentially the same for both matters. The Applicant argued that
the Decision awarded only one set of costs to apply to both matters. The
Respondent could have assessed a separate bill of costs in each
matter only if it had requested, which it did not do, special directions
by the Court to that effect. The Applicant therefore addressed
specifically only the bill of costs in court file T-1570-07
[the T-1570-07 Matter] in arguing that its claimed $25,305.72 should be
reduced to an assessed total of $9,371.80 to cover both matters. In the
alternative, should the Respondent be permitted to assess the bill of
costs (claiming $9,227.29) in court file T-1571-07 [the T-1571-07 matter], its submissions
on individual items of costs would apply equally in both matters.
[4]
The
Respondent argued that it is significant that the Decision read that “the
appeal is dismissed” rather than “the appeals are dismissed.”
That is, its intent was clearly the disposition of each of the two matters. It
clearly cannot be read, as the Applicant suggests, as a single set of costs to
cover both matters. The Applicant’s position is untenable because it is as if
the T-1571-07 matter had never existed at all. In fact, the subject trade-mark
and application in the T-1571-07 matter were different, as was certain of the
evidence. The two matters proceeded separately for a few years and although
more recent orders addressed them together, their respective underlying
materials reflected the differences of the trade-marks and grounds for the two
matters. Certain counsel fee items in the T-1571-07 matter were considerably
reduced in recognition of some synergies between the corresponding services in
the T-1570-07 matter. As well, some disbursements overlapping both matters were
put in the bill of costs for the T-1570-07 matter. As the Applicant chose not
to dispute the bill of costs for the T-1571-07 matter, its modest claim of
$9,227.29 should be allowed.
Assessment of
the Preliminary Issue of Separate Bills of Costs
[5]
These
two matters did differ somewhat. The respective Respondent’s Records filed July
6, 2009 each numbered 206 pages. The affidavits of Thomas Ciz sworn January 25,
2008 in each matter were similar in content concerning corporate activity of
the Respondent, but displayed certain differences, i.e. subject colours and
invoice references. The affidavits of Kimberly La sworn January 24, 2008 in
each matter appear identical, except for their court numbers. Paragraph 21
sets each affidavit as applicable to both matters by including this
phrase: “I have not located any deck fasteners in the colour green and/or in
the colour greyish green.” Her affidavits sworn January 25, 2008 in each
matter are identical except for differing language to indicate that two
physical exhibits common to both would accompany only the original affidavit
filed in the T-1570-07 matter. Her affidavits sworn May 12, 2008 are
identical except for references in paragraph 2 to “greyish green” and
“green” in the T-1570-07 matter and the T-1571-07 matter respectively. The Respondent’s
Memorandum of Fact and Law for each matter is clearly a single document
applicable to both matters. It asks for costs in both matters. As well,
although there were discrete filings as these matters initially unfolded, there
were several later indications of common issues, i.e. the Direction dated
January 20, 2009 permitting one set of motion materials for an interlocutory
appeal, the Order dated May 26, 2008 in Federal Court file T-2245-07 and 14
other files staying them pending disposition of these two matters etc. The
consolidation Order dated April 14, 2000 in the Federal Court of Appeal files
A-512-09 and A-513-09 (the respective appeals of the Decision) directed that
the appeal books filed in A-512-09 be deemed to have been filed in A-513-09 and
that the Appellant (Applicant) could file (which it did) a supplementary
appeal book in A-513-09 consisting solely of the Canada Trade-marks Office file
history for the Canadian trade-mark application addressed by the T-1571-07
matter and the Respondent’s four affidavits in said matter noted above. The
Federal Court of Appeal dismissed the appeals with a single set of costs.
[6]
The
practice of the Courts has been, if they intend that a litigant common to
multiple proceedings be limited to a single set of costs, to visibly so direct.
That did not occur here. I think that further to Genpharm Inc v The Minister
of Health et al, [2003] 1 FC 402 (FCA) at para 8, referring to Blueberry
River Indian Band v Canada (Department of Indian Affairs and Northern
Development), [2001] 4 FC 451 (FCA) at para 38, that I can look at reasons
of the Court to determine the intent of an order. Here, the Decision did not
suggest limiting the Respondent to a single set of costs. I find that the
Respondent may present a bill of costs in each matter. That does not mean that
the Respondent can benefit further to a windfall profit caused by twice assessing
an item of counsel work or a disbursement which occurred only once, but was
applicable to both matters.
Counsel Fees
Item 2: 6 units ($130 per unit) claimed in each matter
for the Respondent’s record and materials (available range = 4-7 units / hereafter,
the available range for each fee item appears in the brackets)
[7]
The
Applicant argued that 4 units or less are sufficient given that the affidavits
of Thomas Ciz and Kimberly La were already part of the Applicant’s Record,
meaning that the only new and minimal materials for the Respondent were the
Description of Physical Exhibits and Memorandum of Fact and Law totalling 32
pages of the 206-page Record.
[8]
The
Respondent asserted that the respective evidence in each matter did differ.
The Respondent argued that fee item 2 is not a function only of an
application record, but rather includes the work associated with a notice of
appearance and with addressing the various grounds asserted in each Notice of
Application and summarized in paragraphs 16 and 17 of the Decision.
Assessment
[9]
I
have previously addressed the appropriate allowance further to middle range
awards of costs, including the use of fractions, i.e. para 9 of Butterfield
v Canada (Attorney General), 2008 FCA 315 (AO), paras 2 and 4 of Mercury
Launch & Tug Ltd v Texada Quarrying Ltd, 2009 FC 331 (AO) [Mercury
Launch] and paras 26 and 36 of Cockerill v Fort McMurray First Nation
#468, 2010 FC 1002 (AO) [Cockerill]. I think it arguable that, just
as the Respondent considered 6 units as the middle of the range, someone
else might consider 5 or 5.5 units to be the middle of Column III. I have
examined the respective Records and other materials that were before the Court.
I allow 5 units in each matter.
Item 5: 5 and 2 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for
reply motion record to the Applicant’s motion for an extension of time
resulting in an October 9, 2007 Order (3-7 units)
Item 5: 5 and 2 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for
reply motion record to the Applicant’s motion to amend the Statement of
Opposition resulting in a March 31, 2008 Order (3-7 units)
Item 6: 4 units and 1 unit
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for a two-hour
appearance associated with the March 31, 2008 Order (1-3 units per hour)
Item 5: 5 and 2 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for
reply motion record to the Applicant’s motion for case management directions
resulting in an April 24, 2008 Order (3-7 units)
Item 5: 5 and 2 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for reply
motion record to the Applicant’s motion appealing the Prothonotary’s decision
concerning amendment of the Statement of Opposition resulting in an Order dated
May 1, 2008 (3-7 units)
Item 6: 4 units and 1
unit claimed respectively in the T-1570-07 matter and in the T-1571-07 matter
for a two-hour appearance associated with the May 1, 2008 Order (1-3 units per
hour)
Item 5: 5 and 2 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for
the motion record to set aside a previous Order of the Prothonotary resulting
in an Order dated May 26, 2008 (3-7 units)
Item 6: 2 units and 1 unit
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for a
one-hour appearance associated with the May 26, 2008 Order (1-3 units per hour)
Item 5: 5 and 2 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for
the reply motion record to the Applicant’s motion appealing the Prothonotary’s
decision concerning cross-examination of affiants resulting in an Order dated
April 21, 2009 (3-7 units)
Item 6: 2 units and 1 unit claimed respectively in the
T-1570-07 matter and in the T-1571-07 matter for a one-hour appearance
associated with the April 21, 2009 Order (1-3 units per hour)
[10]
The
May 1, 2008 Order dismissed the Applicant’s appeal with costs and the
Respondent’s cross-appeal with costs. The Applicant argued that in the absence
of evidence to the contrary that the cost entitlement of one party was more
than the other, these awards of costs should be offset equally leaving zero
units assessed for both fee items 5 and 6. The hearing itself was only 1.5 hours.
[11]
The
Applicant asserted that fee item 5 should be limited to 4 units for the May 26,
2008 Order, which awarded costs to the Respondent in any event of the cause.
Fee item 6 should be limited to 1 unit as this was a brief 15-minute telephone
hearing. The Applicant advanced the same position for the April 21, 2009 Order,
which awarded costs to the Respondent, further to a one-hour hearing.
[12]
The
Respondent asserted that this is an assessment of its costs further to the May
1, 2008 Order and not of the costs of the Applicant who should have sought its
own separate assessment. The Respondent argued for the May 1 and 26, 2008 and
April 21, 2009 Orders that the 5 units claimed for fee item 5 represent
the middle of Column III as required by the Decision. The same argument applies
to fee item 6. The Respondent asserted that the duration of the May 26, 2008 hearing
was one hour and not 15 minutes.
Assessment
[13]
I
have not set out the respective positions of the parties on costs associated
with the October 9, 2007 and April 24, 2008 Orders because I agree with
the Applicant that orders silent on costs do not give rise to entitlements
to costs: see Falcon Ventures Ltd v Echoes (The), [1982] FCJ No 703; British
Columbia Forest Products Ltd v Canada (Minister of Industry, Trade and
Commerce), [1982] FCJ No 910; Industrial Milk Producers Assn v British
Columbia Milk Board, [1988] FCJ No 537 and Metaxas v Galaxias (The),
[1989] FCJ No 564. As well, I do not think that the Decision could purport
to award costs further to those Orders: see paras 34-35 of Cockerill
above. I disallow the fee item 5 claims and associated disbursements (see below
for the latter dispositions).
[14]
I
disallow the fee item 5 and 6 claims and associated disbursements for the March
31, 2008 Order because I agree that an order specifically directing “no costs”
precludes any assessed costs.
[15]
The
Respondent’s bill of costs in the T-1570-07 matter includes the $500 lump-sum
award in the July 29, 2009 Order addressing an adjournment. As I found in
paragraph 7 of Drosdovech v Canada (Minister of National Revenue – MNR),
2010 FCA 173 (AO) that a lump-sum award does not form part of assessed
costs, although it may, further to paragraph 160 of Abbott Laboratories v Canada
(Minister of Health) [Abbott], (2008) 66 CPR (4th) 301
(AO), be used for set-off, I remove the $500.
[16]
The
awards of costs associated with the other Orders did not give directions for
their assessment. The Decision could not purport to vary or add to their
dispositions, i.e. by limiting them to the middle of Column III: see paras
34-35 of Cockerill above. As well, with regard to paragraph 69 of Pfizer
Canada v Canada (Minister of Health), 2008 FC 11 [Pfizer], Rule 407
directing that costs be assessed per Column III unless the Court orders
otherwise prescribes the full range of Column III as the default value for
party and party costs, as opposed to the mid-range limitation indicated by Pfizer.
[17]
I
have read materials in the record underlying the Court’s May 1, 2008 Reasons
for Order and Order. Effectively, the combination of the claimed amounts in the
respective bills of costs means the maximum 7 units for what was essentially a
single motion. Paragraphs 15 and 16 of Madell v Canada, 2011 FCA
105 (AO) [Madell] set out my general approach for assessments of costs
and for counsel fee items respectively. I find that 6 units total are sufficient
for fee item 5. The Respondent’s materials indicated that fee amounts
claimed in the T-1570-07 matter might be more than those for the same service
in the T-1571-07 matter in recognition of synergies between the matters. I will
apportion the 6 units equally between the two matters.
[18]
The
Applicant may assert set-off of any of its costs against that result, but it
should occur further to a formal assessment initiated under Rule 406(1)
(obtaining appointment) and not by the relatively informal approach as
here by raising it as part of reply submissions further to an assessment
process initiated by the other side. However, I find in these circumstances of
a clear entitlement by the Applicant to costs of this one motion that it is
expedient to resolve them now, but in a conservative manner given the
Applicant’s informal and late approach. Accordingly, I allow the
minimum 3 units to the Applicant for fee item 5 in the T-1570-07 matter only,
to be set off against the 3 units assessed above for the Respondent in the
T-1570-07 matter, leaving zero units assessed there and leaving untouched the 3
units assessed above for the Respondent in the T-1571-07 matter.
[19]
Paragraph
6 of Armstrong v Canada (Attorney General), 2010 FC
1189 (AO) outlines generally my approach in resolving fee items 13 (preparation
for trial or hearing), 14 (appearance at trial or hearing) and 15 (written
argument) issues. By extension, as circumstances require, I use a similar
approach for fee item 5 and 6 issues, including apportionment of hours and
units. Although the court record does indicate a duration of 1.5 hours for
this motion, I will use two hours for the fee item 6 calculation to
account for counsel getting settled in the courtroom. The Respondent
claims a total of 5 units for a single hearing of two hours, effectively 2.5
units per hour. I find that appropriate under fee item 6 for the demands
of this hearing, to be apportioned by assigning one hour at 3 units per hour to
the T-1570-07 matter and the second hour at 2 units per hour to the T-1571-07
matter. Again, considering the Applicant’s informal approach, I allow only the
minimum 1 unit per hour for two hours under fee item 6 to be set off against
the 3 units assessed above for the Respondent in the T-1570-07 matter, leaving
1 unit assessed there and leaving untouched the 2 units assessed above for the
Respondent in the T-1571-07 matter.
[20]
As
seen below, the Respondent presented certain disbursements associated with this
motion, which I will allow. The Applicant did not present any disbursements for
assessment. I find that none should be allowed to the Applicant in the
circumstances, meaning it will not benefit from set-off in that area.
[21]
I
think that the circumstances of the work associated with the May 26, 2008 Order
were straightforward. The total fee item 5 claim of 7 units is too high. I
reduce it to 4 units to be apportioned equally between the two matters. The
associated hearing lasted 15 minutes. Paragraphs 26 and 36 of Cockerill
above and paragraph 21 of Shields Fuels Inc v More Marine Ltd, 2010 FC
228 (AO) are examples of the use of fractions for hearing cost calculations. I
will use 0.5 hours for the fee item 6 calculation at 2 units per hour for
a total of 1 unit, down from the total 3 units claimed, to be apportioned
equally between the two matters.
[22]
Again,
for the April 21, 2009 Order, I read the underlying materials. I think for fee
item 5 that a total of 6 units, down from the maximum 7 units claimed, is
appropriate, to be apportioned equally between the two matters. I find that the
total of 3 units claimed under fee item 6 for the single hearing is
appropriate.
Item 8: 4 and 2 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for
each of separate preparations for the cross-examination on the affidavits of
Thomas Ciz, on the affidavits of Kimberly La and on the affidavits of Armen
Jeknavorian (2-5 units)
Item 9: 4 and 2 units claimed respectively in the T-1570-07
matter and in the T-1571-07 matter for separate attendances (two hours
each) on the cross-examinations of affiants Thomas Ciz and Kimberly La and 10
and 5 units claimed respectively in the two matters for attendance (five hours)
on the cross-examination of affiant Armen Jeknavorian (0-3 units per
hour)
[23]
The
Applicant argued that the affidavits of Thomas Ciz and Kimberly La on behalf of
the Respondent were brief and comprised mostly of exhibits and therefore 2
units per affiant are sufficient for fee item 8. The fee item 8 claim for Armen
Jeknavorian should be reduced to 3 units further to the mid-Column III
restriction in the Decision. Similarly, fee item 6 for attendance on the
cross-examinations of the Respondent’s affiants should each be reduced to 1
unit per hour as each examination took less than one hour and was conducted by
the Applicant’s counsel. As the cross-examination of the Applicant’s affiant
(Mr. Jeknavorian) took about five hours, including a one-hour lunch break, and
was not difficult or complex, 1 unit per hour for a total of 4 units suffices
for fee item 6.
[24]
The
Respondent argued that cross-examinations necessarily delve in detail into
exhibits which for the Respondent’s affidavits were considerable. There is no
reason for fee item 5 to allow less than the middle of Column III required by
the Decision. The length of the cross-examination of the Applicant’s
affiant justifies the claimed units. The Respondent argued that the Tariff
wording for fee item 9 does not restrict it to the lawyer actually conducting
the cross-examination or preclude it for the opposing counsel working very hard
to represent the witness being cross-examined. Fee item 9 provides for
compensation based on the time spent and not on the level of perceived complexity.
Assessment
[25]
Paragraph
29 of Cockerill above sets out my approach to fee item 8 and 9 issues.
The Respondent’s counsel was active, whether via objections or clarifications,
early and throughout the cross-examination of Thomas Ciz on his affidavits, i.e.
his objections on pages 2-3 of the transcript to questions relating to the
instituting documents, his extended series of objections on pages 4-21
as to proper scope of cross-examination etc. At one point (pages 22-23),
the Applicant’s counsel became irritated, telling him to either “object or stay
off the record because what you’re doing is you’re giving instructions
throughout your objections” and that he wished to have an additional counsel in
the room removed because his snickering was offensive. Things seem to have
settled down by pages 41-42 with an exchange of civilities. There was no
re-examination. This cross-examination on the morning of June 10, 2008 was
followed by the cross-examination in the afternoon of Kimberly La on her
affidavits. Again, the Respondent’s counsel was active throughout. Opposing
counsel were able to rely on positions taken in the Ciz cross-examination, i.e. the
Applicant’s counsel on pages 1, 3-4 and 6, and the Respondent’s counsel on
pages 8-11. There was no re-examination.
[26]
The
cross-examination of Armen Jeknavorian on his affidavits occurred the next day.
Other than some minor clarifications on pages 1 and 9 of the transcript,
the Applicant’s counsel did not make a serious intervention until pages
16-17. He did intervene to object or clarify after that, but not
frequently. Page 68 of the transcript records the lunch break, but without
showing the time. Pages 97-109 contain the re-examination by the
Applicant’s counsel during which the Respondent’s counsel intervened frequently,
it seemed. There were four questions outstanding from the
cross-examinations of the Respondent’s affiants. The letter dated April 2, 2009
from the Respondent’s counsel provided the same answer to each, i.e. “I don’t
know.”
[27]
I
have in mind the differences, which were not considerable, between the
respective evidence for these matters. I find that the fee item 8 claims for
the Respondent’s affiants should be reduced to a total of 4 units for
each, 2 units in each matter. I allow the fee item 8 claim for Mr. Jeknavorian
as presented at 6 units total. These results accord with the Decision’s
prescription for the middle of Column III, depending on whether each
cross-examination is considered individually or collectively for the respective
matters.
[28]
The
total of 6 units claimed under fee item 9 for each of the Respondent’s
affidavits equates to the maximum 3 units per hour. I reduced that to 2 units
per hour by allowing 2 units for each affiant in each matter. Again, the rate
per hour for the Applicant’s affiant equates to 3 units per hour (15 units
for five hours). I can only guess at the duration of the lunch break. I find
that a total of 12 units are sufficient, 7 units in the T-1570-07 matter and 5
units in the T-1571-07 matter.
Fee item 10: 2 units and 1
unit claimed respectively in the T-1570-07 matter and in the T-1571-07 matter
for each of separate preparations for case management conferences on May 23,
September 18 and November 3, 2008, and January 19 and 28, 2009
(3-6 units)
Fee item 11: 2 units and 1
unit claimed respectively in the T-1570-07 matter and in the T-1571-07 matter
for each case management attendance on May 23 (10:00-10:07 am); September 18
(12:00-12:30 pm); November 3 (12:00-12:30 pm); January 19
(1:00-1:15
pm) and January 28 (2:00-3:00 pm) (1-3 units per hour)
[29]
The
Applicant argued further to paragraphs 8-9 of Kraft Canada Inc v Euro
Excellence Inc, 2009 FC 62 (AO) [Kraft Canada] that nothing should
be allowed because these conferences all related to motions and not pre-trial
or pre-hearing procedures. As well there were no associated orders for costs.
The Respondent argued that Kraft Canada above is not applicable because
some of these conferences, as preferred by the Court, functioned as
motions.
Assessment
[30]
Kraft
Canada
above refused fee item 10 and 11 allowances on the basis that the directions
resulting from conferences were silent on costs and that such conferences
cannot relate to pre-motion process. However, I found in paragraphs 17 and 20
of Boshra v CAPE, 2011 FCA 278 (AO) that the distinction between
motions and conferences as interlocutory process is not always straightforward
and indeed that costs may be assessable for an order silent on costs and
associated with fee items 10 and 11. The key distinction is whether the work was
part of preparation for a motion within the meaning of fee item 5, meaning no
right for indemnification of costs exists further to an Order silent on
costs ultimately disposing of the underlying motion or request to the Court as
opposed to whether the work is part of overall case management process driven
by the Court, part of which invariably includes the scheduling of motions to
shape the issues within the meaning of fee items 10 and 11 and for which a
right for indemnification of costs exists further to a judgment for
costs and an interlocutory order silent on costs. Determinations reflecting
this distinction are found in para 30 of Cockerill above; paras 12 and
20 of Songhees Indian Band v Canada (Minister of Indian Affairs and Northern
Development), 2010 FC 526 (AO); para 3 of Martselos v Poitras, 2009
FC 957 (AO); para 5 of International Taekwon-Do Federation v Choi, 2008
FC 1103 (AO) [International Taekwon-Do] and para 40 of Métis National
Council of Women v Canada (Attorney General), 2007 FC 961 (AO) [Métis
National Council of Women].
[31]
The
Respondent’s evidence indicated that the May 23, 2008 conference addressed the
scheduling of the Respondent’s motion to set aside the May 2, 2008 Order. The
correspondence and directions in the record leading up to the May 23, 2008
conference, and the abstract of hearing for that day, indicate that this was a
case management hearing and not a motion. Therefore, the absence of an order or
the presence of an order silent on costs does not preclude the Respondent’s entitlement
to fee items 10 and 11, an entitlement triggered by the judgment, i.e. the
Decision, on the substantive issues of the litigation. The combined total
of 3 units claimed for fee item 10, being the minimum value in the available
range, is appropriate and is allowed. The combined total of 3 units
claimed for fee item 11 equates to one hour at the maximum 3 units per hour for
a seven minute conference, a result not warranted in the circumstances. My
practice depending on the circumstances for fee items 6, 14, etc. is to
assign fractions for their duration. Here, I allow 0.25 hours x 2 units per
hour (the mid-range value prescribed by the Decision) = 0.5 units (see para 26
of Cockerill above permitting fractions of units in this circumstance)
to be apportioned equally between the two matters.
[32]
The
Respondent’s evidence indicated that the other four conferences addressed
outstanding questions and refusals associated with the cross-examinations,
including the scheduling of motions to resolve them. The correspondence in the
record leading up to the September 18, 2008 conference, and the abstract of
hearing for that day, indicate that it addressed case management issues as a
whole, and not just those associated with the cross-examinations. A letter
dated October 6, 2008 from counsel for the Respondent further to the September
18, 2008 conference “in anticipation of the proposed case management
conference and informal motion by telephone scheduled for October 9, 2008”
indicated that the Respondent would not pursue refusals by way of motion
because “the appropriate manner of dealing with refusals/undertakings is to
rely on negative inferences based from the refusals and to do so at the hearing
of the application” particularly in litigation intended to be summary in
nature, meaning that any cross-examination issues would be dealt with
informally at the scheduled case management conference.
[33]
The
abstract of hearing for November 3, 2008 indicated a case management conference
and that the “Court will rule on the first category questions from the
applicant’s motion and will adjourn this matter to a time and date to be set.”
A letter dated December 10, 2008 from counsel for the Respondent indicated that
the Applicant’s motion was heard on November 3, 2008 and asked that the formal order
arising from the motion address certain issues to move these matters along.
[34]
The
December 31, 2008 Order addressed not only the motion, but also general case
management matters. It awarded costs of the motion to the Respondent. The
appeal of this order was addressed by the April 21, 2009 Order. The costs for
this latter order were addressed above under fee items 5 and 6. A letter dated
January 6, 2009 from counsel for the Applicant expressed concern that the
December 31, 2008 Order had in error dismissed the entire motion “as the only
portion of the motion dealt with by the parties before Mr. Aalto on November 3,
2008” were questions associated with the failure of witnesses to comply with
the Rules as to the Directions to Attend. Although this letter does refer
to case management elements of the December 31, 2008 Order, it reinforces my
sense that the November 3, 2008 hearing was in the nature of a motion as opposed
to a case management conference: see para 5 of International Taekwon-Do
above.
[35]
The
abstract of hearing for the January 19, 2009 hearing indicates a case
management conference result, i.e. the Court proposing “to hear further
submissions on the issue of outstanding questions” on January 28, 2009 relative
to the Applicant’s motion. The Respondent’s evidence indicated that the Court
requested counsel, further to the January 28, 2009 conference, to submit
a draft order detailing those questions ordered to be answered. The
abstract of hearing confirmed that direction and also described the event
that day as a motion heard informally. A letter dated January 29, 2009
from counsel for the Respondent states that the Court heard on January 28, 2009
another portion of the same motion that was addressed by the December 31, 2008
Order and suggests that the hearing of the outstanding motion to appeal the
December 31, 2008 Order be delayed to be heard with any appeal forthcoming from
an expected order further to the January 28, 2009 hearing.
[36]
The
second order was dated March 18, 2009. Its preamble indicated that it was
issued further to the motion and to the hearing on January 28, 2009. Its relief
was precisely what I would expect for a motion as opposed to a case management
conference, as distinguished in paragraph 5 of International Taekwon-Do
above. It directed that there be no costs. Although a letter dated April 1,
2009 from counsel for the Applicant characterized the January 28, 2009 hearing
as a case conference call, other correspondence indicated that the hearing of a
motion occurred on that day. Finally, I note that paragraph 2 of the Order
dated April 21, 2009, addressed above under fee items 5 and 6, referred to
this interlocutory hearing as a motion.
[37]
I
find that the September 18, 2008 hearing was a case management conference, for
which the minimum 3 units total claimed under fee item 10 are appropriate. I am
not inclined to use a figure for duration greater than 0.5 hours, which at 2
units per hour gives 1 unit, to be apportioned equally between the two matters.
[38]
Although
there were case management elements on pages 7 and 8 of the December 31, 2008
Order, I find that the November 3, 2008 hearing was a motion as opposed to a
case management conference. If it had resulted in an order silent on costs, I
would not have allowed any costs whether claimed under fee items 5, 6, 10 or
11. I found in paragraph 28 of Cockerill above that the fee item 5 and 6
claims might have more appropriately been made under fee items 10 and 11, but
left them as is for expediency. In paragraph 5 of International Taekwon-Do
above, I actually replaced fee items 5 and 6 with fee items 10 and 11. Here,
the situation is reversed. The December 31, 2008 Order awarded costs of the
motion to the Respondent. I am content to address them under fee items 10 and
11. I allow the total of 3 units claimed for fee item 10. Having found that
this hearing was a motion, I find as well that the Decision’s prescription for
the middle of Column III does not apply. For fee item 11, I allow 3 units per
hour for 0.8 hours (consistent with my practice noted in cases cited above to
allow counsel to get settled) for a total of 2.4 units to be apportioned
equally between the two matters.
[39]
I
find that the January 19, 2009 hearing was a case management conference
straightforward in nature. I allow the minimum 3 units total claimed for fee
item 10. I am not inclined to use a figure for duration greater than 0.25
hours, which at 2 units per hour gives 0.5 units, to be apportioned equally
between the two matters.
[40]
I
find that the January 28, 2009 hearing was a motion as opposed to a case
management conference. Its disposition in the March 18, 2009 Order directed no
costs. Accordingly, regardless of whether the Respondent claims under fee items
10, 11, 5 or 6, no costs are assessable.
Item 13(a): 4 and 2 units
claimed respectively in the T-1507-07 matter and in the T-1571-07 matter for
preparation for hearing of appeals (2-5 units)
Item 14(a): 17 and 4 units
claimed respectively in the T-1570-07 matter and in the T-1571-07 matter for
the appearance of 5.5 hours by first counsel at the hearing of the appeals (2-3
units per hour)
Item 25: 1 unit claimed in each matter for services
after judgment
[41]
The
Applicant argued that fee item 13(a) should be limited to the mid-range value
of 3 units prescribed by the Decision given no need to prepare fact or expert
witnesses, issue subpoenas or arrange any other special procedure for a hearing
based on argument only. As the Applicant’s counsel did most of the argument,
fee item 14(a) should be limited to 5.5 hours at 2 units per hour. Fee item 25
should be disallowed because there is no explanation, evidence or details of
any services to the client.
[42]
The
Respondent argued that the values of 3 or 4 units are both at the middle of
Column III. An allowance of 4 units would reflect the principle of partial
compensation for legal expenses embodied in the Tariff, although not even close
to full indemnity. The record indicates that both opposing counsel contributed
equally to the hearing. Regardless, opposing counsel both had to be present and
vigilant throughout for either their own argument or to track that of opposing
counsel for rebuttal. The Respondent argued that the fee item 25 claims are
modest for routine services such as addressing the possibility of an appeal.
Assessment
[43]
The
Respondent claims a cumulative total of 6 units under fee item 13(a). The
middle of Column III as prescribed by the Decision could be 3 or 4 units, or
even 3.5 units. I find that 6 units, to be comprised of 3 units in each matter,
comply with the Decision, are appropriate in the circumstances and are allowed.
[44]
The
17 units claimed in the T-1570-07 matter under fee item 14(a) for 5.5 hours
equate to 3.09 units per hour, which both exceeds the maximum value in the
available range and the middle of Column III prescribed by the Decision. It may
have been 16.5 units (5.5 hours x 3 units per hour) rounded up to 17 units. I
am unclear on the rationale for 4 units claimed in the T-1571-07 matter,
which equates to 0.73 units per hour. As my findings in the case law noted
above indicate, directions on costs such as the Decision can free an assessment
officer from the restriction in Tariff B2(2) against fractions of units. The
middle of the fee item 14(a) range of 2-3 units per hour is 2.5 units per
hour if fractions are permitted, which when applied to 5.5 hours gives 13.75 units
to be apportioned at 7 and 6.75 units respectively to the T-1570-07 matter
and the T-1571-07 matter.
[45]
I
routinely allow fee item 25, as I will here, unless I think that counsel would
not have reviewed the judgment and explained its implications to the client.
Item 26: 6 and 2 units claimed respectively in the
T-1570-07 matter and in the T-1571-07 matter for the assessments of costs (2-6
units)
[46]
The
Applicant argued that the minimum 2 units are appropriate for an assessment in
writing. However, nothing should be allowed to reflect the unnecessary work by
the Applicant in responding to items of costs advanced by the Respondent
clearly without any basis for entitlement. Further, the Applicant should be
awarded 2 units if a substantial reduction of the Respondent’s claimed costs
occurs. The Respondent argued that the claims are very modest for tracking the
various items of costs over the four-year history of this supposedly “summary”
proceeding and fitting them in separate bills of costs accompanied by
supporting evidence.
Assessment
[47]
The
materials before me from both sides reflect organized and competent counsel. I
do not think that the Respondent’s claims for certain motion costs ultimately disallowed
were careless or intended to frustrate the Applicant. Although I may have
dealt with some items above as if these two matters were a single unified
proceeding, I think that the Respondent’s counsel had to prepare two bills of
costs. The Decision’s prescription of the middle of Column III means that only
4 units were available in each matter. I will leave undisturbed the
Respondent’s total claim of 8 units, being 6 units in one matter and 2 units in
the other matter, effectively a mid-range result of 4 units for each matter. I
refuse any item 26 costs in favour of the Applicant.
Disbursements
The T-1570-07 Matter: Photocopies
($1,168.75, all at $0.25 per page); Binding ($175.21); Online Legal
Research ($603.16); Courier ($294.16); Postage ($6.75); Long Distance
($401.84); Facsimile ($173.50); Parking ($37.97); Taxi ($140.98); Airfare to
Toronto ($1,531.56); Accommodation ($151.45); Meals in Toronto ($27.43);
Process Server ($47); Cross-examination Transcripts ($228.95 and $725.68)
The T-1571-07 Matter: Photocopies ($612.50, all at $0.25
per page); Binding ($104.66); Courier ($175.31); Postage ($1.68) and
Facsimile ($64.50)
[48]
The
Applicant argued that there was no evidence to support the photocopy charges or
to establish their relevance. The Applicant noted the finding in paragraph 21
of Métis National Council of Women above that:
…
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 the sense of austerity which should pervade costs,
to preclude prejudice to the payer of costs. However, real expenditures are
needed to advance litigation: a result of zero dollars at assessment would
be absurd.
The Applicant conceded that the Respondent
did incur photocopying expenses and asserted that an amount of $400 would be
reasonable given the absence of evidence.
[49]
The
Applicant argued that nothing should be allowed for computer research,
long-distance tolls, facsimiles, parking and taxis as these are overhead
expenses to be absorbed in the billing to the client. The courier and
postage claims should be disallowed because the absence of evidence precludes
confirmation that they did not relate to some of the other 29 appeals between
the parties.
[50]
The
Applicant conceded the airfare and accommodation charges, and $11.96 being the
only part of the meals charge with a receipt, but otherwise objected to meals.
The Applicant conceded the binding charge in the T-1570-07 matter. The
Applicant conceded the process server and transcript charges. The Applicant
argued that HST should not be allowed as it would have been levied at source.
[51]
The
Respondent asserted that there is testimonial evidence supporting the photocopy
charges and that those done in-house were at the rate of $0.25 per page
compared to the Tariff rate of $0.45 per page. The evidence here that the
courier and facsimile charges relate only to those two matters was made under
oath. There are receipts for each parking disbursement. Taxis are properly
assessable if they involve travel to and from airports directly as here in
connection with hearings or motions. The evidence clearly establishes that
the listed disbursement amounts are pre-tax and therefore the claimed HST is
appropriate.
Assessment
[52]
I
note again paragraph 15 of Madell above in which I held that an
assessment of costs takes the form of rough justice reflecting the reality of
the demands of litigation. Paragraph 65 of Abbott above summarizes 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.
[53]
The
Respondent’s materials break out the photocopy charges by event, i.e. 28 pages
x $0.25 per page x 5 copies = $35 claimed in each matter for the September 28,
2007 motion record relating to the October 9, 2007 Order silent on costs for
which I held above that no costs were assessable. Therefore, these amounts of
$35 are disallowed. Similarly, the amounts of $116.25 (Order dated March 31,
2008) in both matters and $193.75 (Order dated April 24, 2008) in the T-1570-07
matter are disallowed.
[54]
The
Respondent’s bill of costs in each matter claims $108.75 and $12.50 for the
April 14, 2008 motion record and book of authorities respectively addressing
its appeal of the Prothonotary’s Order dated March 31, 2008. As well, the bill
of costs in each matter claims $82.50 for the April 24, 2008 responding motion
record to the Applicant’s appeal of said March 31, 2008 Order. In address-ing
the fee item 5 and 6 claims above by way of set-off further to the resultant
May 1, 2008 Order, I held that only the Respondent could assess any
associated disbursements. That does not mean that the Respondent is
entitled to costs addressed by that portion of said order giving costs of the
Respondent’s cross-appeal motion to the Applicant, but it does mean the Respondent
is entitled to costs addressed by that portion of said order giving to it the
costs of the Applicant’s appeal motion. That is, I allow the claims of $82.50
in each matter, but disallow the claims of $108.75 and $12.50 in each matter.
As indicated above, no disbursements are assessable in favour of the Applicant.
[55]
The
balance of the photocopy claims address motions already approved above, and the
Respondent’s application record in each matter, and are allowed as presented.
Accordingly, the final assessed totals for photocopies in the T-1570-07 and
T-1571-07 matters respectively are $702.50 and $340.
[56]
I
am assessing costs within the parameters of the Applicant’s alternative
position, i.e. if the Respondent is allowed to present a bill of costs in each matter,
then the Applicant’s submissions apply equally to both matters. For example, I
have ignored the Applicant’s concession of the binding claim ($175.21) in the
T-1570-07 matter.
[57]
The
binding claims associated with the motions above for which costs were denied
are also disallowed, leaving $93 and $48.09 allowed respectively in these two
matters.
[58]
Paragraph
111 of Abbott above outlines my usual concerns with computer research.
The evidence here includes a typical law office computer program of
disbursement listings affording limited information on relevance and necessity.
I allow a reduced amount of $375.
[59]
My
practice has been to consider couriers, postage, long-distance tolls and
facsimiles, as well as binding, as disbursements, i.e. disinterested
third-party services charged to the client and which are not surviving or
ongoing benefits to a law firm or its subsequent clients: see paras 28-31 of Peerless
Ltd v Aspen Custom Trailers Inc, 2010 FC 618 (AO). Although I accept the
assertion by supervising counsel that they do not relate to the other
appeals, I am concerned that some are precluded further to my disposition above
of given interlocutory events. The evidence indicted that receipts are not
available for some disbursements such as couriers, facsimiles and postage.
[60]
I
allow reduced amounts in the T-1570-07 matter of $185 and $300 for couriers and
long-distance respectively and in the T-1571-07 matter of $85 for couriers. I
allow postage of $6.75 and $1.68 respectively as claimed in these matters.
I allow reduced amounts of $135 and $50 respectively in these matters for
facsimiles.
[61]
I
agree with the Respondent on parking, taxis and meals and allow them as
presented in the T-1570-07 matter as they relate to events for which I
have allowed costs above. I also allow the return airfare and
accommodation as claimed. The Process Server related to service on the
Applicant of the motion record to set aside the May 2, 2008 Order and I
therefore allow the $47 claimed. Transcripts of the various cross-examinations were
essential: I allow their charges as claimed ($228.95 and $725.68). As well, I
agree with the Respondent on HST subject, of course, to the limitation
that HST is to be allowed on the assessed subtotals only for counsel fees and
disbursements.
[62]
The
bills of costs of the Respondent, presented respectively at $25,305.72 and
$9,227.29 in the T-1570-07 and T-1571-07 matters, are assessed and allowed
respectively at $13,943.18 and $7,933.26. The assessed total of $13,943.18 in
the T-1570-07 matter reflects the set-off of $650 assessed in favour of the
Applicant further to the May 1, 2008 Order.
“Charles E. Stinson”
Vancouver, BC
January
17, 2012
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