Date: 20090223
Docket: T-1183-07
Citation: 2009 FC 190
BETWEEN:
LEADING SEAMAN D. M. MORPHY
(RET’D)
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS – REASONS
Bruce Preston
Assessment
Officer
[1]
By
way of judgment dated February 14, 2008, the Court allowed the Applicant’s Application
for Judicial Review, with costs.
[2]
On
March
31, 2008
the Applicant filed the Affidavit of Zorica Guzina together with the
Applicant’s Bill of Costs.
[3]
On
May 15, 2008, Charles E. Stinson, Senior Assessment Officer issued the
following oral direction (confirmed in writing):
The Senior
Assessment Officer, Charles E. Stinson, has noted the bill of costs of the
Applicant and has further noted that its assessment appears appropriate for
disposition by way of written submissions. Therefore the Senior Assessment
Officer has directed that: a) the Applicant may serve and file all material (if
not already done), including bill of costs, supporting affidavit and written
submissions, by June 10, 2008; b) the Respondent may serve and file any reply
materials by July 4, 2008; c) the Applicant may serve and file any rebuttal
material by July 29, 2008.
[4]
The
time limits set by the direction have now passed. The Applicant and Respondent
have both filed materials addressing the Bill of Costs.
I. Fees
[5]
The
Applicant’s claim for assessable services under Items 8, 10, 13(a) and 14(a)
are allowed as presented. Item 9, the examination of D.M. Morphy is also
allowed as presented.
[6]
Concerning
Item 1, the Applicant makes scant submissions concerning the preparation and
filing of the Notice of Application and Application Record. At paragraphs 4, 5
and 6 of the Applicant’s submissions on costs, the Applicant outlines the work
involved in preparing the Record including Affidavits. These submissions,
however, only concern the materials used and the labour for assembly.
[7]
The
Respondent’s submissions, however, focus on the complexity of the document and
the amount of work involved in its preparation. Counsel submits that as the
document is not complex 4 units should be allowed for Item 1.
[8]
Notwithstanding
the Respondent’s submissions concerning Item 1, I am of the view that allowing
4 units would not adequately reflect the amount of work required by the
Applicant. Although, as submitted by the Respondent, the Notice of Application
itself contained only 4 pages, the Affidavit of D.M. Morphy is extensive and
the Memorandum of Fact and Law is 29 pages long. Further, the Applicant was
required to produce evidence and argument covering 17 years of medical
treatment by several different doctors. For the above noted reasons, Item 1 is
assessed and allowed at 5 units.
[9]
The
Applicant makes no submissions concerning Item 9, attending on the examination
of Major Cormier, other than those relating to the disbursement for the Court
Reporter fee. The Respondent’s submissions relating to the examination of Major
Cormier are found at paragraph 15 of the submissions on costs:
The Applicant claims the maximum of 3
units per hour under Tariff III, Item 9 of the Rules for attending
on the examination of Major Cormier (ABC – Item 9). This amount is excessive.
The applicant anticipated that the examination of Major Cormier would last 2 days
and booked the court reporter’s services accordingly, yet the examination
lasted only 3.6 hours. Since the examination was less complex and time-consuming
than the applicant anticipated, the applicant should only be claiming 1 unit
per hour under Item 9.
[10]
Having
reviewed the Transcript of Major Cormier’s examination, I note that the
examination lasted just over 1 hour, not the 3.6 hours submitted by the Respondent.
However, other than this discrepancy, the Respondent’s submission that the
examination was less complex and time-consuming than anticipated by the
Applicant seems to be accurate.
[11]
Having
read the transcripts of the examinations of D.M. Morphy and Major Cormier, I
find that during the examination of D.M. Morphy there was at least one
objection, an undertaking and several times when counsel had to provide information.
This was not the situation during the examination of Major Cormier. Further, counsel
for the Respondent was conducting the examination of Morphy. Applicant’s
counsel, although prepared, did not control the examination. This lack of
control may have had the effect of increasing complexity and requiring greater attentiveness
thus warranting a higher number of units per hour. For the above reasons, Item
9 for the examination of Major Cormier is allowed at 2 units, for a duration of
1.2 hours.
II. Disbursements
[12]
The
issue of photocopies has been debated for years and this assessment is not an exception.
The Applicant’s position is submitted at paragraph 2d of their submissions on
costs:
Photocopy fees. As a matter of policy, we
charge our client $0.50 a page for all copies made. This is a conscious
decision on our part to distribute part of our administrative overhead in this
manner. The unit cost includes the cost of paper, printing material, depreciation
of the photocopier and the cost of the operator. However, for the purpose of this
amended Bill of Costs, we have reduced our rate to $0.40 a page.
[13]
This
is supported by paragraph 11 of the amended affidavit of Zorica Guzina, sworn
the 10th day of June, 2008.
[14]
At
paragraph 6 of the Applicant’s submissions on costs there is a particularized
outline as to the photocopying disbursements:
Therefore the costs involved were to
cover a) photocopying of 1264 (316 x 4) pages; b) the cost of binding
materials; c) labour costs for the assembly and binding of four copies of the
Application Record.
·
Photocopying
fees: $505.60
·
A flat
charge covering the costs of binding materials, tabs and covers: $45.00
·
Labour
costs for the assembly and binding fees: $150.00
·
Total
cost: $700.60
[15]
The
Respondent’s position is set out at paragraphs 12 and 13 of their submissions
on costs:
The tariff charged for photocopying is
excessive (ABC – Item 1). Two major commercial photocopying stores indicated
that they charge a fee of $0.10 per page to “walk-in” customers. As such, the
applicant’s claim of $0.40 per page is unreasonably high. As the Federal Court
noted in Diversified Products Corp. v. Tye-Sil Corp.,:
A law office is not in the business of
making a profit on its photocopy equipment. It must charge the actual cost and
the party claiming such a disbursement has the burden to satisfy the Taxing
Officer as to the actual cost of the essential photocopies
The applicant’s request for costs related
to binding materials, tabs, covers and labour costs for assembly and binding
fees is inappropriate (ABC – Item 1). As this court has noted, such costs are
properly categorized as overhead costs. Overhead costs are already reflected in
the counsel fees being claimed by the respondent (sic – applicant) under Tariff
B. The applicant should not be allowed double-recovery of these costs.
This position is supported by paragraph 3
of the affidavit of Ginette Bray sworn June 30, 2008.
[16]
Although
the Applicant has particularized a justification for a photocopy charge of
$0.40 per page, I am not convinced that this is the actual cost of essential
photocopies. As indicated in the Diversified decision; “A law office is
not in the business of making a profit on its photocopy equipment. It must
charge the actual cost…”. The Respondent has presented evidence of two
commercial printers, whose business is to provide a photocopy or duplication
service, presumably at a profit, at a charge of $0.10 per page. Although there
would be economies of scale and differing administrative charges for a
commercial printer, if a company in the business of duplication is profitable
at $0.10 per page, I conclude that a law firm charging their client $0.40 per
page is likely making a profit on its photocopy equipment.
[17]
Further,
the Respondent is also correct in submitting that binding materials, tabs,
covers and labour costs for the assembly of the photocopies are overhead.
[18]
Having
regard to the above, I am prepared to allow a lump sum for photocopying, in the
amount of $250.00.
[19]
The
Applicant has claimed $100.00 for the filing fees attached to the Notice of
Application and Requisition for hearing. This amount is allowed as presented.
[20]
The
Applicant has also claimed $849.59 for the attendance of a Court Reporter for
the examination of Major Marc Cormier on September 6,
2007.
At paragraphs 7 and 8 of the submissions on costs, counsel for the Applicant
explains:
Anticipating that discovery of Major
Cormier could extend over a two-day period, we reserved the services of Bruce
Levey Reporting Services for such period. However, the examination of Major
Cormier only took part of the first day.
Despite our cancellation of the second
day as soon as it became clear to us that examination would be completed during
the first day, Bruce Levey Reporting Services refused to reduce their fees
which amount to $849.59 covering the two day period. This amount is claimed.
[21]
At
paragraph 16 of their submissions on assessment the Respondent submits:
The applicant claims $849.59 in court
reporter fees associated with the discovery of Major Cormier (ABC – Item 9).
The applicant reserved the services of a court reporter for two days, but the
discovery of Major Cormier lasted only 3.6 hours. The respondent should not
be responsible for paying for an extra day and a half of unused court reporter
time (approx. $378) that was incurred because the applicant overestimated the
amount of time it would take to conduct the discovery.
[22]
Further,
having reviewed the transcript of the examination I note that there were no
admissions or concessions which would have had the effect of drastically
shortening the length of the examination of Major Cormier.
[23]
Although
I am in agreement that the Respondent should not be responsible for the
overestimation of the Applicant, I note, from a review of the Levey invoice,
that the reporting firm charges a daily rate for its services. This being the
case, the Applicant would have had to pay $252.00 plus GST had the examination
lasted one hour of six hours. I will therefore allow the fee for the first day
(September 6, 2007), however, the fee for the second day is not allowed. As the
disbursements relating to the transcript are particularized in the invoice from
Bruce Levey Reporting Services, they are allowed as presented. Therefore,
disbursements for the attendance of a Court Reporter at the examination of
Major Cormier are allowed at $582.47, inclusive of GST.
[24]
The
Law Society Levy is allowed as presented.
[25]
There
are three other disbursements claimed for a total of $23.91. These
disbursements cannot be allowed as no invoices were produced as evidence that
these amounts were paid to an outside service provider.
[26]
Pursuant
to the above reasons, the Applicant’s Bill of Costs presented at $6,152.70 is
assessed and allowed at $5001.87. A Certificate of Assessment will be issued.
“Bruce Preston”
Toronto, Ontario
February 23,
2009
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