Date: 20090122
Docket: T-2103-07
Citation:
2009 FC 62
BETWEEN:
KRAFT
CANADA INC.
Applicant
and
EURO
EXCELLENCE INC.
Respondent
ASSESSMENT OF
COSTS – REASONS
DIANE PERRIER,ASSESSMENT
OFFICER
[1]
On
February 22, 2008, the Court dismissed with costs Defendant’s motion for striking
out the Applicant’s present Notice of Application.
[2]
On
February 28, 2008, the Applicant filed its bill of costs requesting the
assessment to be done without personal appearance of the parties. Each party
filed their representations. I am now ready to proceed with the assessment of
costs.
[3]
In
the representations in support of the Applicant’s bill of costs, counsel for
the Applicant refers to rule 409 providing that: “In assessing costs, an
assessment officer may consider the factors referred to in subsection 400(3)”.
These factors include, but are not limited to, the following: (a) the result of
the proceeding and (c) the importance and complexity of the issue. Applicant’s
counsel also referred to the Order of the Court dated February 22, 2008 and
states that the Respondent had the burden of demonstrating that the Applicant’s
Application was void of any chance of success. It was a burden that the
Respondent failed to meet. The Applicant mentions that the expenses detailed in
the Bill of Costs were reasonably incurred. It should be noted that assessments
are only partial indemnifications of party-and-party costs. An assessment
officer can allow only those costs within the parameters of the Rules and
Tariff.
[4]
Counsel
fees requested at $5,292.00 are allowed in the amount of $2,280. This figure is
based on my reasoning set out in the following paragraphs:
[5] Item 5: Preparation and filing of
responding materials to Respondent’s motion to strike the application -
Applicant is seeking 7 units: the allowable range for Column III on this item
is three to seven. Respondent in his submissions replied that 5 units should be
allowed because the Respondent’s motion was not highly complex, nor the issues
raised novel, which required extensive research. Applicant argued that the
purpose of the Respondent’s motion was to strike the Applicant’s Application.
The outcome of the motion was crucial to the end result of the Application and
counsel for the Applicant had to research the issues raised by the Respondent,
draft detailed responding materials and prepare for and attend the hearing in Montreal. This item
is allowed at 6 units. I do agree that this motion is an important motion but I
do not think that it merits the maximum number of units
[6] Item 6: Appearance on motion on
February 18, 2008 in Montreal is allowed at 3 units for 3 hours because each
item should be viewed on its own so I have considered both representations but
I think that the motion went on for 3 hours so it was as I said previously an
important motion so for that purpose I am allowing 3 units and not 2 units.
[7] Item 7: Discovery and
examination of documents related to Respondent’s motion to strike the
application is refused because as mentioned in the Respondent’s representations
no affidavit of documents under Rule 223 and subsequent of the Federal Courts
Rules has been filed in the record by the Applicant. Such an affidavit is
usually prepared for an action not an application. As mentioned in the case submitted
by the Respondent in Hyundai Auto Canada Corp. v. Cross Canada Auto Body
Supply (West) Ltd. :“This assessment of costs dealing specifically with costs
on a motion, no units will therefore be allocated for this item”.
[8] Item 10: Preparation for
conference including memorandum heard on February 8, 2008 claimed at 6 units is
refused because the oral directions from the Court of February 8, 2008 is
silent as to costs. Also, this item in Tariff B of the Federal Courts Rules
refers to procedures taking place prior to the trial or hearing and not to
procedures taking place before a motion as mentioned in the Respondent’s
representations and also in the case of Hyundai Auto Canada Corp. v. Cross Canada Auto Body
Supply (West) Ltd.
[9] Item 11: Attendance at telephone
conference regarding hearing on motion to strike claimed at 3 units is refused
because of the reasons given in the previous paragraph.
[10] Item 13 a): Counsel fees for
preparation for hearing is refused. Referring to Tariff B of the Federal
Courts Rules we see that item 13 is found under subheading “D. Pre-Trial
and Pre-Hearing Procedures” and not under subheading “B. Motions” under which
item 5 is found. Item 5 already captures the context of a motion as referred in
Respondent’s submissions in the case of Most Wanted Entertainment Co. v.
Duff, (2006) FC -958, by Assessment Officer Robinson.
[11] Item 24: Travel by counsel to
attend motion in Montreal from Toronto, at the discretion of the Court, is
refused as an assessment officer has no jurisdiction to allow item 24 when the
Court is silent on this issue when disposing of the motion in question.
[12] Item 25: Services after judgment
is allowed at one unit as requested.
[13] Item 26: Assessment of costs is
allowed at 3 units. The Applicant is requesting 4 units and the Respondent is responding
that the assessment of costs should be reduced to 2 units. I think that in the
circumstances of the case and with my reading of the file 3 units appear
reasonable.
[14] Disbursements are allowed in the
amount of $775.96. The following disbursements are allowed as requested because
they are not contested and they appear reasonable: paid airfare, paid taxi fare
– Airport to Court and paid parking – Toronto Airport are disbursements that
are proven by exhibits B, C, and D to the affidavit of Nadine McMillan and also
to photocopies made in house. As for the paid telephone charges in the amount
of $45.58, the paid facsimile charges in the amount of $53.75 and the paid
courier charges in the amount of $32.40, they are contested. They are a
statement in the affidavit of Nadine McMillan but there is no proof that these
amounts were paid. It is hard to determine how much was paid but I believe that
a percentage of these amounts should be allowed and consider reasonable. So, I will
allow 80% of the charges which are $105.38.
[15] The amount of GST is allowed as
requested considering that it is not challenged, not included in the assessable
services and disbursements.
[16] The Applicant’s Bill of costs
presented at $6,399.03 is assessed and taxed in the amount of $3,208.76 (assessable
services $2,280.00 + disbursements $775.96 + GST $152.80). A certificate of
taxation will be issued in this file.
MONTREAL (QUEBEC)
January
22, 2009
Diane
Perrier
DIANE PERRIER
ASSESSMENT
OFFICER
FEDERAL
COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: T-2103-07
Between:
KRAFT CANADA
INC.
Applicant
and
EURO
EXCELLENCE INC.
Respondent
WRITTEN REPRESENTATIONS:
Timothy M. Lowman
Toronto, Ontario for
the Applicant
Richard Uditsky
Montreal, Quebec for
the Respondent
PLACE OF
TAXATION: Montréal, Quebec
ASSESSMENT OF COSTS – REASONS BY DIANE PERRIER, OFFICIER
TAXATEUR
DATE OF
REASONS: January 22, 2009
SOLICITOR OF RECORD:
Sim, Lowman, Ashton & McKay
Toronto, Ontario for the Defendant
McMillan Binch Mendelsohn
Montreal, Quebec for
the Respondent
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