Date: 20090219
Docket: T-557-04
Citation: 2009 FC 182
BETWEEN:
LOVAT INC. AND
GURIS INSASAT
VE MUHENDISLIK, A.S.
Plaintiffs
and
BLUE ANCHOR LINE,
KUEHNE & NAGEL INTERNATIONAL LTD.,
carrying on
business as "Blue Anchor Line"
and the owners
and charters and all other interested in
the ship
"ATLANTIC ACTION" and the Ship "TYRUSLAND"
and
NORDANA LINE A.S.
Defendants
and
NORDANA LINE A.S.
Third Party
ASSESSMENT OF
COSTS- REASONS
DIANE
PERRIER ASSESSMENT OFFICER
[1]
This
is an action for damages in respect of a cargo sent from Etobicoke, Canada by plaintiff
Lovat Inc. to plaintiff Guris Insasat Ve Muhendislik, A.S. in Ankara, Turkey, for
which the carrier services of the defendants were rendered. Plaintiffs maintain
that the cargo, a main bearing, was damaged en route, alleging that the damage
occurred during the overseas portion of the shipping.
[2]
On
May 4, 2007, the Court dismissed plaintiffs’ action stating that if the party cannot
agree on costs, written submissions may be filed within twenty days of the date
of the judgment.
[3]
On
February 18, 2008, the Court ordered that costs of the action were payable by
the plaintiffs to the defendant
Nordana Line A.S. and that costs shall be assessed in accordance with Column
III of Tariff B.
[4]
On
May 27, 2008, defendant Nordana Line A.S. filed a bill of costs and a
corroborating affidavit from Mr. DeMarco requesting that the assessment be done
by way of written submissions. Letters were sent to the parties. Each party
filed their written representations. I am now prepared to assess the bill of
costs.
[5]
This
action started as an ordinary action with the filing of a Statement of Claim on
March 16,
2004.
Plaintiffs then filed a notice of motion requesting that Nordana Line S.A. be
added as a defendant.
[6]
On
October 18, 2004, plaintiffs filed an Amended Statement of Claim adding defendant
Nordana Line A.S..
[7]
On
November
16, 2004,
defendant Nordana Line A.S. filed its Defence.
[8]
On
December 8, 2004, plaintiffs filed a motion requesting that this action be
conducted as a simplified action.
[9]
On
January 21, 2005, Prothonotary Lafrenière allowed this action to be conducted
as a simplified action and that plaintiffs’ claim for damages and expenses
related to the loss of goods be in the amount of $50,000.
[10]
On
February
15, 2005,
plaintiffs filed their further Amended Statement of Claim. On October 14, 2005, plaintiffs
filed a requisition for a Pre-Trial conference. The trial was held in Toronto on June 27,
28, and 29, 2006.
[11]
Plaintiffs
stated in their written submissions against the bill of costs of defendant
Nordana Line A.S. that the costs being claimed by Nordana Line A.S., in
particular its disbursements in the amount of $29,129.05, are excessive in
relation to the overall value of the claim. Plaintiffs noted that defendant has
also claimed the maximum amount allowable under column III of Tariff B. Plaintiffs
remarked that the costs of Nordana are higher than the other parties because it
decided to retain a lawyer from Montreal rather than local
counsel as was done by the other parties.
[12]
Nordana
responded to plaintiffs by saying that the same general representations were
made before Prothonotary Milczynski and that on February 18, 2008, Prothonotary
Milczynski directed that Nordana’s costs be assessed in accordance with Column
III of Tariff B. As for the representation of a party, Nordana referred to
section 11 of the Federal Courts Act that allows a party to be
represented by counsel of choice and counsel may be any person who is a
barrister, advocate, attorney or solicitor in a province or in a superior court
of a province. A party may choose its representative and there is
no restriction in this regard.
[13]
I
do agree with counsel for Nordana that as per section 11 of the Federal
Courts Act there is no restriction in the choice of counsel by a party. It
is to be noted that taxation is a partial indemnification of party-party costs.
So, not all of the expenses paid by a party in a file will be allowed at
taxation. All of the items for assessable services do not need to be at the
same level.
[14]
Counsel
fees requested at $16,080 are allowed in the amount of $12,000. This figure is
based on my reasoning set out in the following paragraphs:
Item 2: For preparation
of statement of Defence – seven units are claimed by defendant – the
allowable range is four to seven. In my opinion, having regard to the basis of
the matter before the Court, I consider five units reasonable for this item;
five units are allowed for this item.
Item 4: Preparation of
Motion Record for an order compelling plaintiffs to furnish a complete answer – four units
are claimed by defendant – the allowable range is two to four units. However,
this item cannot be allowed because the Order of Prothonotary Tabib dated
December 14, 2005 is silent as to costs. The assessment officer has no
jurisdiction to allow an item once the Court is silent as to costs.
Item 5: Preparation of
Motion Record in response to plaintiffs’ motion to file affidavit of Roland
Paxton as a trial affidavit – seven units are claimed by defendant – the
allowable range is three to seven units. However this item is disallowed as the
Order of Prothonotary Milczyinski dated May 3, 2007 is silent as to costs.
Item 7: Discovery of
documents
– five units are claimed by defendant – the allowable range is two to five
units. The five units as claimed are allowed.
Item 8: Preparation of
written examination of plaintiffs – five units are claimed by defendant -
the allowable range is two to five units. The five units as claimed are allowed.
Item 8: Preparation of
answers to examination of Nordana – five units are claimed by defendant –
the allowable range is two to five units. The five units as claimed are
allowed.
Item 10: Preparation of
Pre-Trial conference memorandum – six units are claimed – the allowable
range is three to six units. The six units as claimed are allowed.
Item 11: Attendance at Pre-Trial
conference
– (3 hrs x 3) 9 units are claimed – the allowable range is two to three units. This
action proceeded as a simplified action so the number of units will be reduced
to two units for three hours. Plaintiffs argued that the duration of the
Pre-Trial conference should be reduced from 3 to 2 hours because of the
presentation of defendant’s motion. It is to be noted that in a simplified
action, motion shall be made returnable only at a Pre-Trial conference as per Rule
298(1) of the Federal Courts Rules so the duration of the Pre-Trial
conference will remain three hours. Therefore, item 11 is allowed at 6 units (3
hours x 2units).
Item 13(a): Preparation
for trial
– 5 units are claimed by defendant – the allowable range is two to five units. Since
this action proceeded as a simplified action, I am allowing three units for
this item.
Item 13(b): Preparation
for trial after first day - (2 days x 3 units) are claimed by defendant –
the allowable range is two to three units. The 6 units as claimed are allowed.
Item 14(a): Counsel fee:
to first counsel, per hour in Court – 19.5 hours x 3 units
are claimed by defendant – the allowable range per hour is two units to three.
My review of the minutes of hearing reveal the hours recorded as follows; June
27, 2006, 10:00 to 12:00 and 1:00 to 05:15 (6.25 hours), June 28, 2006, 9:40 to
1:45 and 2:45 to 4:40 (6 hours), June 29, 2006, 9:00 to 2:30 (5.5hours). I have
rounded the total number of hours to 18 hours x 3 units = 54 units is allowed
for this item.
Item 27: Preparation of
certificate re: expert evidence – 3 units are claimed by defendant. The
allowable range for this item is one to three units. I am disallowing this item
as mentioned in plaintiffs’ written representations against the bill of costs
as this form document consisted of a one paragraph statement and is not a
document considered in Tariff B.
Item 24: Travel by
counsel from Montreal to Toronto and back to Montreal – seven
units are claimed by defendant. The allowable range for this item is one to
five units. As mentioned in plaintiffs’ written representations, the maximum
that can be allowed is five units. We also have to look at the definition of
this item which states: “at the discretion of the Court” which clearly
proscribes the assessment officer from allowing fees under this item unless the
Court has so stipulated, which it has not in the present case.
Item 25: Services after
judgment
– one unit is claimed – this is the allowable number of units for this item and
it is allowed as requested.
Item 26: Assessment of
costs
–defendant claimed 6 units – the allowable range is two to six units. I am
allowing four units which I considered reasonable in view of the volume of
documents presented for the taxation and also the type of file.
[15]
As
for disbursements, counsel for defendant Nordana Line A.S. requests the
following expenses: 1) for the expert report and attendance at trial of
Nordana’s expert witness: $4,552.23; 2) three witnesses’ disbursements:
$17,589.38, amount that has been corrected to $16,699.38 because the amount of
$890 for translation expenses, exhibit “O” to the affidavit of Mr. DeMarco in
support of the bill of costs, has already been included in Nordana’s counsel
disbursements; and 3) disbursements incurred by Nordana’s counsel
including hotel fees: $6,987.44 for a total of the corrected amount of
$28,239.05.
[16]
Plaintiffs
argued that these amounts are grossly excessive and are not reasonable as
required for taxation by paragraph 1(4) of Tariff B. As mentioned by plaintiffs,
all of the expenses that were paid by defendant are not recoverable in
taxation. It is what is considered reasonable necessity that should be the
criterion for the decision of allowing or disallowing an expense.
[17]
Fees
for expert witness will be allowed in the amount of $4,552.23 because, as
mentioned by counsel for defendant Nordana Line A.S., as per Tariff A 3(4), an
amount greater than $100 can be established for an expert witness by contract
for his or her services in preparing to give evidence and to give such evidence.
The expert witness charged $225 per hour plus his airline tickets which I
considered necessary and reasonable.
[18]
As
for hotel costs, plaintiffs argued that counsel for Nordana as well as all of
Nordana’s witnesses stayed at the Hilton Hotel in Toronto which is a four-star
hotel. Nordana incurred approximately $8,500 in hotel fees for a trial that was
scheduled for and completed in three days.
[19]
Defendant
argued that the Hilton Hotel was chosen because of its proximity to the Federal
Court in Toronto, and the
rates charged are not unreasonable for a hotel in the central business district
of the largest city and economic centre of Canada.
[20]
I
do agree that hotel costs have to be reimbursed but not for the full amount
requested by defendant Nordana Line A.S. because, as stated before, disbursements
should be reasonable and necessary. I have looked into both invoices as per
exhibits “F” and “U” of Mr. DeMarco’s affidavit and I have noticed that counsel
for Nordana paid $279.00 per night + $7.81 for destination marketing fee although
the three witnesses paid instead $329.00 per night + $9.21 for destination
marketing fee. So, I will allow the amount claimed for counsel for Nordana in
the amount of $279.00 + $7.81 for destination marketing fee for hotel for the
three witnesses considering the fact that the hotel is in downtown Toronto. I have also
noticed a charge of $104.14 for lunch for the three witnesses. I will only allow
what is permitted under the travel directive of the Sevretariat of the Treasury
Board as of April 2006 which was $12.00 per person for lunch. I also agree with
plaintiffs that the hotel fees paid for Mr. Albrechtsen for four days before
the Trial should be reduced to two days before the Trial. As for the two
Turkish witnesses, I will allow one day before Trial. I found this reasonable
and necessary. The hotel fees for Mr. Albrechtsen will be $286.81 x 5 days = $1,434.05
and for the two Turkish witnesses $286.81 x 4 days x 2 = $2,294.48 for a total
of $3,728.53 + $261.00 (GST 7 %) + $199.48 (PST 5 %) + $36.00 (lunch) for a
grand total of $4,225.01.
[21]
Nordana
is also claiming for three meals for June 25, 26, and 27, 2006 in the amount of
$415.00 for the three witnesses. I do agree with plaintiffs that the claim was
unreasonable but I will allow $33.60 for each meal for three persons as per the
travel directives from the Secretariat of the Treasury Board as of April 2006.
The total allowed is $302.40.
[22]
I
will allow Mr. Kosali’s lost wages in the amount of $531.54 as per exhibit S of
Mr. DeMarco’s affidavit in support of the bill of costs because Tariff A 3(3) allows
a greater amount equal to the expense or any loss incurred by the witness in
attending a proceeding.
[23]
I
will disallow the claim for travel allowances for Mr. Kosali and Mr. Bilgili
for US$1,888.32 (US$944.16 for each witness) as per exhibit R of Mr. DeMarco’s
affidavit. As mentioned by plaintiffs, no explanation were given as to what
these disbursements involved and as to why they were provided to the two
Turkish witnesses.
[24]
I
will also disallow all the disbursements incurred by Nordana Line A.S. with
respect to the exercise of obtaining a visa as per exhibits K and L to Mr.
DeMarco’s affidavit: the translation expense required to prepare the
Kosali/Bilgili witness statements as per exhibit M of Mr. DeMarco’s affidavit,
notarial fees to have the Kosali/Bilgili witness statements executed before a
notary in Turkey as per exhibit N of Mr. DeMarco’s affidavit, taxi expenses for
Mr. Kosali and Mr. Bilgili as per exhibit Q of Mr. DeMarco’s affidavit. These
expenses occurred while preparing for the trial so it was already recovered by
item 13(a) of counsel fees.
[25]
I
allow the travel expenses for the three witnesses in the amount of $4,523.88 as
per exhibits “P” and “T” of Mr. DeMarco’s affidavit as being reasonable and
necessary disbursements. The total for the expenses of the three lay witnesses is
allowed at $9,582.83.
[26]
Brisset
Bishop office expenses and Mr. DeMarco’s travel expenses amounted to $6,987.44.
Plaintiffs argued that Nordana is claiming approximately $1,500.00 for
telephone, telecopier, photocopies, couriers, taxi and parking expenses. No
particulars of these expenses or the rates applied have been provided to the
plaintiffs. I do agree with plaintiffs that the details of the expenses are not
clear as to what rate was applied but I am sure that these expenses occurred in
the course of the action. So I will allow 75 % of the amounts paid for the
telephone, telecopier, photocopies, courier and bailiff because they appear
reasonable and were necessary in the course of the action ($1,495.57 x .75 =
$1,121.68).
[27]
As
for the taxis and parking, I will allow $147.00 ($30.00 + $50.00 +$55.00 +
$12.00) as per paragraph 7 of Mr. DeMarco’s affidavit (exhibits D and E).
[28]
As
for the airfare to Toronto, defendant Nordana is claiming $764.35 including
a charge of $42.80 to change his return flight; the trial having finished a
little earlier than anticipated. I will allow $721.55 for airfare to Toronto. The charge
of $42.80 is disallowed because plaintiffs, as previously mentioned, do not
have to pay for all disbursements incurred concerning a file. I do not think
that this disbursement appears reasonable and necessary for the course of an
action.
[29]
As
for Mr. DeMarco’s hotel invoice, I will allow as requested $279.00 per night +
$7.81 destination fee for four days along with GST 7% and PST 5% ($279.00 x 4 +
7% GST + 5% PST) for a total of $1,288.93. Breakfasts were claimed for four
days, I will allow $12.50 per day as per the travel directive of the Secretariat
of the Treasury Board of April 2006. All of the other expenses on the hotel
invoice, for example, telephone, laundry, photocopies will be disallowed
because as mentioned earlier taxation is only a partial indemnification of party-party
costs. Also, I will not allow the disbursement in the amount of $67.85 paid for
accommodation at the Comfort Inn Airport after the trial since mishaps at
Air Canada had no
consequences on the trial of this matter. The total amount for the hotel
expenses are $1,288.93 + $50.00 = $1,338.93.
[30]
As
for the meeting room for trial preparation in the amount of $469.61, it will be
disallowed as not necessary for the preparation of the trial. A consulting room
in the Federal Court could have been booked free of charge.
[31]
As
for the meals for Nordana’s counsel, I will again allow the rate allowed with
the travel directives of the Secretariat of the Treasury Board of April 2006 in
the amount of $33.60 for dinner for three nights for a total of $100.80.
[32]
The
costs of an interpreter at trial in the amount of $1,540.80 is disallowed
because as per the case MCI v. Phan in file number T-2089-01, the costs
should be borne by the party requiring an interpreter as per Rule 293 of the Federal
Courts Rules.
[33]
The
translation of the witness statements in the amount of $890 will not be allowed
as the costs of the translation has already been recovered by item 13(a) of the
counsel fees.
[34]
The
total disbursements for Brisset Bishop office expenses and Victor DeMarco’s
travel expenses will be allowed in the amount of $3,329.16.
[35]
The
total disbursements will be $4,552.23 for the expert witness + $9,582.83 for
the witness disbursements + $3,329.16 for Brisset Bishop office expenses and
Victor DeMarco’s travel expenses for a total of $17,464.22.
[36]
Defendant
Nordana Line A.S. presented a bill of costs in the amount of $45,209.05 that was
corrected to $44,319.05 but will be taxed and allowed in the amount of
$29,464.22. A certificate of taxation for this amount will be issued.
MONTREAL (QUEBEC)
February
19, 2009
DIANE PERRIER
ASSESSMENT
OFFICER
FEDERAL
COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: T-557-04
BETWEEN:
LOVAT
INC. AND
GURIS INSASAT VE MUHENDISLIK, A.S.
Plaintiffs
and
BLUE
ANCHOR LINE,
KUEHNE
& NAGEL INTERNATIONAL LTD.,
carrying on business as "Blue Anchor
Line"
and the owners and charters and all other
interested in
the ship "ATLANTIC ACTION" and the
Ship "TYRUSLAND"
and
NORDANA LINE A.S.
Defendants
and
NORDANA
LINE A.S.
Third
Party
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF
PARTIES
PLACE OF
TAXATION: Montréal, Quebec
ASSESSMENT OF COSTS – REASONS BY DIANE PERRIER, OFFICIER
TAXATEUR
DATE OF
REASONS: February 19, 2009
WRITTEN REPRESENTATIONS:
John Carter for
the Plaintiffs
Toronto, Ontario
Victor De Marco for
the Defendant, Nordana Line AS
Montreal, Quebec
SOLICITOR OF RECORD:
Isaacs & Co.
Toronto, Ontario for
the Plaintiffs
Brisset Bishop
Montreal, Quebec for
the Defendant, Nordana Line AS
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