Date: 20090828
Docket: T-157-05
Citation: 2009 FC 855
BETWEEN:
NAV
CANADA
Plaintiff
and
ADACEL TECHNOLOGIES LIMITED
and
ADACEL INC.
and
CAE INC.
Defendants
ASSESSMENT OF
COSTS – REASONS
DIANE PERRIER,
ASSESSMENT OFFICER
[1]
On
April 4, 2008, the Plaintiff discontinued its action for copyright infringement
initiated on January 27, 2005. Pursuant to rule 402 of the Federal Courts
Rules, Defendant CAE Inc. (CAE) is entitled to its costs.
[2]
On
September 10, 2008, CAE filed its Bill of Costs with the affidavit of Elizabeth
Adamczyk and exhibits EA-1 to EA-7 inclusively requesting that the assessment
proceed in writing. On October 28, 2008, letters were sent to parties fixing a
timetable for the filing of written representations. Parties filed written representations
as requested but CAE filed an affidavit with its reply. I allow Mr. Patersen’s affidavit
in support of the disbursements. On June 12, 2009, I sent directions to both
counsel for the filing of further material which they did. I am now ready to
proceed with the assessment.
[3]
I
allow the following assessable services in the amount of $2,438.10
($2,160 + $108 (GST) + $170.10 (QST)). I allow 7 units for the
filing of the Statement of Defence of CAE, 5 units for the affidavit of documents
of CAE dated November 20, 2006 and 6 units for the assessment of the bill of costs
as these documents were necessary to the proper conduct of the case.
[4]
I
disallow item 4 – motion record of CAE for a hearing in camera of CAE’s
motion to disqualify the Plaintiff’s solicitors for conflict of interest, and
other relief filed on April 27, 2005. A Notice of Discontinuance of the
motion was filed on June 3, 2005 and as such Defendant is not allowed its
costs. As per rule 402 of the Federal Courts Rules, the other party is entitled
to costs.
[5]
I
disallow item 4 for the motion record of CAE to remove Gowlings as solicitors
of the Plaintiff on the ground that it has a Disqualifying Conflict of
Interest, prepared in April 2005, but not filed because Gowlings ultimately
accepted to withdraw prior to CAE filing the motion as the motion was never
filed so no order as to costs was rendered.
[6]
I
disallow item 5 – responding motion record of CAE re: Plaintiff’s motion
for a revised timetable filed on March 13, 2007 as the Order of Madam Prothonotary
Roza Aronovitch dated March 30, 2007 is silent as to costs. An assessment
officer has no authority to allow costs once an order is silent as to costs.
[7]
I
disallow item 5 – Defendant’s motion record re: motion for a protective order
and for bifurcation order filed on March 16, 2007. The Order dated May 31, 2007
of Madam Prothonotary Roza Aronovitch is silent as to costs.
[8]
I
disallow item 6 – hearing at the Federal Court in Ottawa of Plaintiff’s motion for
an order amending the timetables set out in the Order of Madam Prothonotary
Roza Aronovitch heard on November 15, 2007 in Ottawa. The Order
dated November 16, 2007 of Madam Prothonotary Roza Aronovitch is silent as
to costs.
[9]
I
disallow item 11- case management conference to discuss the protective order,
bifurcation motion and the timetable heard on May 31, 2007. The Oder dated May
31, 2007 of Madam Prothonotary Roza Aronovitch is silent as to costs.
[10]
I
allow the following disbursements: the service for the transmission
by fax of the Statement of Defence of CAE upon Plaintiff in the amount of $22,
the service of the Statement of Defence upon Defendant Adacel Inc. in the
amount of $10 and the filing by fax of the Statement of Defence of CAE with the
affidavit of service in the amount of $12 for a total of $44.
[11]
I
disallow the disbursements for the bailiffs’ fees, the service of pleadings
other than by bailiff and photocopies because as mentioned in paragraphs 5 and
7 of these reasons the Orders of the Court were silent as to costs. As mentioned
in paragraph 4 of these reasons, CAE is not entitled to disbursements
because as per rule 402 of the Federal Courts Rules, a Notice of Discontinuance
of CAE’s motion has been filed.
[12]
The
travelling expenses for the hearing of Plaintiff’s motion cannot be allowed
because the Order of the Court rendered on November 16, 2007 by Madam
Prothonotary Roza Aronovitch is silent as to costs.
[13]
As
for disbursements concerning the expert consultant fees in the amount of $800
for Stuart MacDonald and for Douglas Hunte in the amount of $169,225, they
cannot be allowed because, as mentioned by Plaintiff at paragraph 6 in their
reply written representations to CAE’s bill of costs filed on June 22, 2009,
both Mr. Hunte and Mr. MacDonald were hired for the main purpose of
assisting in the litigation as the only witnesses with knowledge of the facts (see
R. v. Abbey, [1982] 2 S.C.R. 24 at 42).
[14]
We
have to be reminded that no trial was held in this action and that an expert
witness is as per rule 279 of the Federal Courts Rules:
|
279. Unless the Court orders otherwise, no expert witness’s evidence is
admissible at the trial of an action in respect of any issue unless
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279. Sauf ordonnance contraire de la Cour, le témoignage d’un
témoin expert n’est admissible en preuve, à l’instruction d’une action, à
l’égard d’une question en litige que si les conditions suivantes sont
réunies :
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(a) the issue has been defined by the pleadings or
in an order made under rule 265;
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a) cette
question a été définie dans les actes de procédure ou dans une ordonnance
rendue en vertu de la règle 265;
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(b) an affidavit or statement of the expert
witness prepared in accordance with subsection 258(5) has been served in
accordance with subsection 258(1), rule 262 or an order made under rule 265;
and
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b) un affidavit
ou une déclaration du témoin expert a été établi conformément au paragraphe
258(5) et signifié conformément au paragraphe 258(1) ou à la règle 262 ou à
une ordonnance rendue en application de la règle 265;
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(c) the expert witness is available at the trial
for cross-examination.
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c) le
témoin expert est disponible à l’instruction pour être contre-interrogé.
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In this case, both Mr. MacDonald and Mr.
Hunte are not expert witnesses as per rule 279, so their fees are not
recoverable.
[15]
I
would also like to point out that as mentioned by the Honourable Mr. Justice
Hughes in Janssen-Ortho Inc. v. Novopharm Ltd., 2006 FC 1333, F.C.J.
No. 1684 (QL) at paragraph 43:
While a party is free to engage a person
for expert services and pay whatever fee is negotiated, that fee should not
become simply allowable on an assessment.
[16]
The
bill of costs of CAE is assessed and allowed in the amount of $2,482.10. A
certificate of assessment will be issued for this amount.
MONTRÉAL, QUEBEC
August 28, 2009
‘‘Diane Perrier’’
DIANE PERRIER
ASSESSMENT
OFFICER
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