Date: 20090212
Docket: T-740-06
Citation: 2009 FC 152
BETWEEN:
GAIL ESTENSEN,
Executrix of
the late RALPH ESTENSEN
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
On
February 21, 2006, Ralph Estensen filed an application for judicial review (the
T-320-06 Matter) of a decision of the Canadian Food Inspection Agency (CFIA) to
cancel his accreditation as a veterinarian for duties which included
preparation of certificates of inspection authorizing the export of Canadian
livestock to the USA. On April 3, 2006, the CFIA revoked its
decision to cancel, but made another decision (the CFIA Decision) that same day
to suspend his accreditation pending a hearing into allegations that he had
breached his contract with the CFIA by issuing improper certificates.
[2]
On
April
27, 2006,
Mr. Estensen filed this application for judicial review (the T-740-06 Matter)
of the CFIA decision. On May 22, 2007, the Court’s Reasons for Judgment directed
that the suspension effected by the CFIA decision be terminated, but
delayed issuance of a formal judgment pending submissions on costs. Mr.
Estensen passed away before judgment issued. On November 15, 2007,
the Court directed that Gail Estensen, the Executrix of Mr. Estenen, be substituted
as the Applicant and that the style of cause be amended accordingly. The next day,
the Court issued judgment in favour of the Applicant including maximum Column
III costs and a fee for second counsel at the hearing. I issued a timetable for
written disposition of the assessment of the Applicant’s bill of costs. The
Respondent’s reply materials conceded a number of items which are allowed as
presented. The Applicant’s rebuttal materials withdrew certain items of costs.
I. Counsel
Fees
A. Fee item 5
(preparation for motion) for the Respondent’s motion in writing to strike those
portions of the T-740-06 Matter requesting damages and improperly naming an
official of the CFIA as respondent
(1) The Respective
Positions of the Applicant and the Respondent
[3]
The
Applicant argued for entitlement to costs because, as the motion judge allowed
costs in the cause, the success in the cause means costs of the motion to the
Applicant. The refusal to remove Dr. G.W. Luterbach as a named respondent was
cautionary given certain jurisprudence.
[4]
The
Respondent noted that the Applicant’s motion materials conceded that damages
for loss of income and punitive damages could not be claimed, but opposed the
removal of Dr. Luterbach. The Applicant should be denied motion costs because
of the Respondent’s success in removing the claim for damages and Dr. Luterbach
as a respondent. The Applicant’s assertion of a position flawed in law and
failure or refusal to conform to the Federal Courts Rules made this motion
necessary.
(2)
Assessment
[5]
The
judgment finding for the Applicant in the cause also had the effect of
confirming the Applicant’s entitlement to costs of this motion, but it could
not purport to award costs of the motion at the upper end of Column III as the
interlocutory decision did not specifically vest the hearing judge (for the
judicial review) with jurisdiction to decide or vary costs of the motion: see
para. 73 of Abbott Laboratories v. Canada (Minister of
Health)
(2008), 66 C.P.R. (4th) 301, [2008] F.C.J. No. 870 (A.O.) [Abbott]
(under appeal) and para. 26 of Fournier Pharma Inc. v. Canada (Minister of
Health),
[2008] F.C.J. No. 1151 (A.O.) [Fournier]. I concluded in paragraph 7 of Starlight
v. Canada, [2001] F.C.J. No. 1376 (A.O.) that the same point in the ranges
throughout the Tariff need not be used as each item for the services of counsel
is discrete and must be considered in its own circumstances. As well, broad
distinctions may be required between an upper versus lower allowance from available
ranges. I find that a mid-range allowance of 5 units ($120 per unit) is
appropriate.
B. Fee items 5
(preparation) and 6 (attendance) for the Respondent’s motion to strike
irregular material from the Applicant’s Record
(1) The Respective
Positions of the Applicant and the Respondent
[6]
The
Applicant noted that the order dated September 12, 2006 provided that costs of
the motion would “be at the discretion of the judge hearing the judicial review
application” and conceded the Respondent’s point that the hearing judge did not
make an order addressing the costs of this motion. The Applicant argued that
the judgment took into account the problems of delay with the Applicant’s
conduct, yet still awarded maximum Column III costs for the judicial review
proceeding. The Applicant’s position prior to that award was for costs higher
than maximum Column III. Said award took into account the Applicant’s mixed
success in his interlocutory proceedings. The motion judge could have, but
chose not to, award costs to the Respondent and therefore the Applicant is
entitled to costs of this motion.
[7]
The
Respondent argued further to Almecon Industries Ltd. v. Anchortek Ltd.,
[2003] F.C.J. No. 1649 (A.O.) [Almecon] that there was nothing in the
judgment for costs confirming entitlement to these motion costs. The Respondent
was successful on this motion necessitated only by the Applicant’s refusal to
abide by the Rules or accede to a reasonable request to remove the irregular
material.
(2) Assessment
[8]
In
paragraphs 25-26 of Métis National Council of Women v. Canada (A.G.),
[2007] F.C.J. No. 1259 (A.O.) [Métis], I addressed fee item 5 and 6
claims for a motion brought at the commencement of the hearing of the judicial
review to permit the estate of the deceased to continue on behalf of the
deceased. The hearing judge disposed of the motion via an order silent on costs
one week before releasing the judgment and reasons on the substantive issues of
the judicial review and included in said reasons a discrete section on the
motion findings. In disallowing the fee item 5 and 6 claims, I held that the
hearing judge, although having rendered the motion order, would have been functus
in terms of purporting to vary the motion order via the judgment. Those
conclusions were consistent with Almecon.
[9]
The
Respondent, Apotex Inc. (Apotex), argued in Abbott (para. 8) that,
although a consent interlocutory order was silent on costs, it had incurred
costs “in the cause for the work in reviewing and consenting to the motion” and
that its entitlement to costs for the motion flowed “globally from the award of
costs in the cause of the judicial review.” I reiterated (para. 96) in Abbott
that a judgment on the substantive issues of litigation does not assert a
residual jurisdiction to permit costs of an interlocutory proceeding disposed
of by an order silent on costs.
[10]
Apotex
also argued in para. 8 for a different motion that the resultant order
permitting the parties to speak separately to costs if no agreement on them
could be reached gave me jurisdiction to allow them as part of the assessment
of costs of the judicial review. The Applicant in Abbott argued in reply
(para. 47) that Apotex could not “acquire via an assessment of costs an absent
entitlement to costs.” I found (para. 97) that as an assessment officer is not
the “Court” as that term is used in Rule 400(1), I had no jurisdiction to
assess these motion costs.
[11]
Here,
there is nothing to indicate that the hearing judge specifically had in mind
this motion in awarding costs of the judicial review proceeding to the
Applicant. The September 12, 2006 interlocutory award of costs was not costs in
the cause to be automatically triggered by the judgment, but rather something
which could only be given effect by a direct and visible direction from the
hearing judge. That did not occur here. I disallow these fee item 5 and 6
claims. It follows that any associated disbursements, including those for
travel, are disallowed.
C. Fee item 6
(attendance) for the Applicant’s motion heard at the beginning of the judicial
review hearing to add four cases to the Book of Authorities
(1) The Respective Positions of the
Applicant and the Respondent
[12]
The
Applicant argued that the hearing of the motion was discrete and independent of
the hearing of the judicial review and its result favoured the Applicant. The
Respondent asserted that the hearing of the motion did not add any time to that
already set aside for the hearing of the judicial review and noted that the
Applicant’s position had been that no extra time would be needed for the
motion. The Applicant’s claim for maximum units under fee item 14(a)
(attendance on the judicial review hearing) means that this fee item 6 claim is
duplicative. The Respondent is entitled to one of these fee items, but not
both.
(2) Assessment
[13]
The
Respondent properly conceded fee item 5 (preparation) for this motion: that
work would have been independent of the work under fee item 13 (preparation for
the judicial review hearing). The Applicant’s assertion that the two hearings
were discrete is correct. The Respondent’s assertion that costs are restricted for
overlapping items is also correct.
[14]
I
noted in paragraph 44 of Métis that the bill of costs correctly factored
out of the claim for item 14 the hour for the motion heard at the beginning of
the judicial review hearing. Paragraphs 281-287 of Halford v. Seed Hawk Inc.,
[2006] F.C.J. No. 629 (A.O.) [Halford] addressed a motion within a trial
for which the Plaintiffs received costs although ultimately losing on the
substantive issues of the lawsuit. I concluded in para. 287 that the Defendants
could not claim as hearing time (fee item 14) during the trial the motion
hearing time for which the Plaintiffs were given costs (fee item 6) and
then segregated the costs accordingly. As costs are an indemnity and not a
windfall or source of profit, the same principle must apply here.
[15]
The
bill of costs claimed one hour for the hearing of the motion and five hours for
the first day of the hearing of the judicial review. The abstract of hearing for
that first day discloses a length of 6 hours 27 minutes inclusive of breaks.
Paragraph 102 of Abbott indicates that I would not necessarily find that
calculation determinative for fee item 14 or 6 formulas. Factoring out the
lunch break leaves 5 hours 3 minutes. The other breaks, i.e. recesses (13 and
10 minutes) and a fire drill (22 minutes) total 45 minutes. Generally, I
include brief breaks as part of hearing duration unless so clearly of a length
and nature, i.e. lunch, as to indicate that they were not billable periods of
hearing time suitable for the fee item 14 and 6 formulas. That is, costs for
brief recesses when counsel must remain in or close to the courtroom should be
allowable as part of fee items 14 and 6 because counsel presumably could not
engage easily in billable work for unrelated clients and would bill the subject
client for these breaks. I consider time getting settled in the courtroom just
prior to commencement as part of assessable hearing time as opposed to
preparation time within the meaning of fee items 5 or 13.
[16]
The
hearing of the motion took 24 minutes at the start of the first hearing day. I
allow fee item 6 using 0.4 (24 ÷ 60 minutes) hours for its calculation. I
think that 20-25 minutes in the courtroom prior to commencement is a reasonable
amount of time to include in hearing duration calculations and I therefore
leave untouched the five hours used for the fee item 14 calculation.
D. Fee
item 9 (attendance) for the cross-examination of Ralph Estensen on his
affidavit
(1)
Assessment
[17]
The
Applicant argued that the Rules do not permit a claim of less than one hour.
The Respondent argued that the transcript confirms a duration of 20
minutes which should be used for the calculation of this item in place of the
one hour used.
[18]
I
concluded in para. 9 of Butterfield v. Canada (A.G.), [2008]
F.C.J. No. 1442 (A.O.), aff’d [2008] F.C.J. No. 1689 (F.C.) that Tariff
B2(2) does not prohibit fractions of hours in fee item calculations. I reduce
the one hour claimed to 0.33 hours.
E. Fee
item 14(a) (attendance on the second day of hearing)
(1)
Assessment
[19]
The
Applicant conceded the Respondent’s point that the duration of the second day
was one hour and not three hours, but argued further to paragraph 7 of Canada
(Minister of Human Resources Development) v. Uzoni, [2006] F.C.J. No. 1619
(A.O.) that time to check in with the Court Registrar before the hearing and
time to clean up after the hearing should be allowed thereby resulting in two
hours for this fee item 14 calculation.
[20]
I
think that the Applicant’s suggestion of a full second hour flowed from the
earlier position that the Tariff did not permit fractions of hours. With
respect, I do not think that the time to clean up after hearings is compensable
under fee item 14. The record indicates a duration of 55 minutes. I allow
1.2 hours.
II. Disbursements
A. Travel
claimed at $988.83 and $288.75 for mileage, hotels and/or meals
(1) The Applicant’s Position
[21]
The
Applicant conceded that a dinner charge of $166 should be reduced to $83, an
amount however still disputed by the Respondent. The Applicant argued further
to Marshall v. Canada, [2006] F.C.J. No. 1282 at para. 6 (A.O.) [Marshall] that even
if as here the Court did not authorize fee item 24 (travel time of counsel),
the associated disbursements are assessable. The total amount claimed compares
favourably to the allowance of $1,922.23 in Marshall.
[22]
The
evidence is that the office of the Applicant’s solicitor of record is 68 kilometres
from the Vancouver Registry of the Court. Appendix B, Schedule 3, item 36 (Item
36) of the British Columbia Supreme Court Rules (the BC Rules) provides
for compensation for a solicitor’s time in transit to a hearing venue more than
40 kilometres from his office plus “reasonable travelling and subsistence
expenses… as a disbursement.” The two venues in the Supreme Court of British
Columbia closest to and convenient for the Applicant were New Westminster and Chilliwack neither of
which were options given that the T-740-06 Matter had to be heard in Vancouver. Paragraph
14 of Lord v. Canada, [2004] F.C.J. No. 430 (A.O.) characterized the
distance between the Vancouver venue and Chilliwack (35
kilometres east of Abbotsford) as “not inconsiderable”.
[23]
The
Applicant argued that the fact that junior counsel did not stay in a hotel does
not undermine the necessity for senior counsel having used a hotel, i.e. to
ensure reasonable preparation time further to the close proximity to the
hearing venue enjoyed by the Respondent’s counsel coupled with the avoidance of
an unpredictable commute. The expenses ($288.75) for junior counsel addressed
three trips for the two-day hearing of the T-740-06 Matter and the hearing for
an interim injunction, including parking and meals.
(2) The
Respondent’s Position
[24]
The
Respondent argued that the travel expenses should be disallowed because the
Applicant’s solicitor is locally based in the Vancouver-Westminster judicial
district of British Columbia. Otherwise, anyone not within walking distance of
the courthouse could claim travel expenses. Alternatively, the travel costs are
excessive, unsupported by the evidence and should be reduced.
[25]
There
was no need for senior counsel to stay at a hotel given that junior counsel was
able to get to the hearing on time via a commute made daily to Vancouver by
many others. The evidence is that counsel commuted to Vancouver several
times to serve documents on opposing counsel, thereby indicating that this
commute was not considered too onerous. The $83 still in issue for dinner is
excessive, and if inclusive of the client, not allowable. Similarly, a
reduction of two-thirds should apply to breakfast costs. There is no evidence
to support the $288.75 claimed for junior counsel.
(3) Assessment
[26]
My
findings in Halford, Biovail Corp. v. Canada (Minister of
National Health and Welfare) (2007), 61 C.P.R. (4th) 33,
[2007] F.C.J. No. 1018 (A.O.), aff’d [2008] F.C.J. No. 342 (F.C.) and Abbott,
set out my views on threshold of proof for categories of costs and approach to
their assessment. Paragraphs 68 to 71 inclusive of Abbott above summarize
the subjective elements and the notion of rough justice in assessments of
costs. In Fournier above, I indicated in paragraph 30 that “if I can
recognize a reasonable charge given an invoice, I can likely recognize one
without an invoice, albeit with more difficulty.”
[27]
I
think that senior counsel was attempting to act in the best interest of his
client in using a hotel. The “expenses” in item 36 could include accommodation
and meal expenses, but perhaps not in every instance. The issue is at what point,
if any, in the Lower Mainland Region (south-western corner of British Columbia)
do safety, sustenance and other concerns in Federal Court practice warrant
hotel and other expenses as opposed to a restriction to the daily charges and
aggravation associated with the daily commute for Greater Vancouver workers or,
by way of comparison, Toronto area workers.
[28]
Section
15(1) of the Federal Courts Act provides that the Court may sit at any
place in Canada. Paragraph 8
of Canada (A.G.) v.
Hennelly,
[1995] F.C.J. No. 320 (F.C.T.D.) indicated that the Court is itinerant. I do
not suggest that the Court would have, if asked, agreed to a venue closer to
Abbotsford.
[29]
Appendix
C, Schedule 3 (Fees Payable to Witnesses), paragraph 2(a) of the BC Rules
provides for $0.30 per kilometre for distances between eight and 200
kilometres. Paragraph 2(b) provides for return airfare for distances over 200
kilometres plus $0.30 per kilometre to and from the departure and arrival
airports. Paragraph 3 provides “a reasonable allowance for meal expenses made
necessary by the witness’ attendance, and where the witness resides elsewhere
than the place of examination, hearing or trial and is required to remain
overnight, a reasonable allowance for overnight accommodation.” Appendix C, Schedule
2 (Fees Payable to Sheriff), paragraph 8 provides $0.45 per kilometre (except
for service of process on an individual).
[30]
Although
I presume that senior counsel was fully prepared, I recognize that last minute
tweaking of hearing preparation can occur and that adjustments to strategy also
can occur in the evenings of a multi-day hearing. While I am not convinced that
hotels are warranted here, I do think that the potential problems of this
commute could have interfered with senior counsel’s performance in a manner not
likely a factor for opposing counsel (there was however no evidence that she
did not face a comparable commute) warranting some consideration in the area of
meals. I will not take into consideration special dietary factors such as
the possibility of a packed lunch, but simply use the Treasury Board of
Canada meal provisions as a rough guide.
[31]
The
record indicates sitting times of 9:30 a.m. to 3:57 p.m. and 9:30 a.m. to 10:25
a.m. respectively for the two days of hearing of the judicial review. There
likely was a need for counsel to confer with one another, and perhaps the
client, at the end of the first day. I am reluctant to find that the best time
to have done so was back at the solicitor’s office in Abbotsford after first
braving the Lower Mainland commute. Conversely, staying for several hours in Vancouver to confer
after the stress of a hearing day and then driving home may not be a much
better alternative. I allow $50 for each of senior and junior counsel for two
meals on the first day ($100 in total), but nothing for the second day.
[32]
The
Respondent’s evidence was that mileage for senior counsel between Abbotsford
and Vancouver amounted to $82.25. The round trip (2 x 68 kilometres) cost, at
$0.30 per kilometre, is $40.80. I doubt that the difference between the
respective locations of the solicitor’s residence and office could account for
this disparity. The respective responsibilities for senior and junior counsel
could have differed to the extent that they would not have travelled together
in one automobile. I allow two round trips for each counsel (4 x $40.80 =
$163.20). I think it reasonable to approve parking in the facility adjoined to
the Registry office, i.e. all day and evening and one-half day respectively for
the first and second days of hearing, which I estimate at $32 for each counsel
for a total allowance of $64.
[33]
One
lawyer appeared at the injunction hearing which commenced at 12:40 p.m. and ended at 3:35 p.m. I allow
mileage at $40.80 and parking (five hours) at $12.50. The result is a total
travel allowance of $380.50 for counsel only and nothing for the client
personally.
B. Claims for Agency Fees ($636.50);
Facsimiles ($213.50) and BC Courthouse Library ($81.90)
(1) The Respective Positions
of the Applicant and the Respondent
[34]
The
Applicant conceded the Respondent’s point that the amounts of $173.39 and
$17.12 for agency fees relate to the T-320-06 Matter and withdrew them.
The Applicant noted in response to the Respondent’s position that the invoice
for agency fee ($96 + tax) did not detail the work and that an online search
would have sufficed, that this was a search for any appeal of a recent decision
advanced by opposing counsel shortly before the hearing as an additional
authority. An online search would have been insufficient because it might only have
revealed a decision after an appeal, but not any outstanding appeals. The
Applicant argued that it was more cost-effective to have Vancouver courthouse
staff copy cases rather than have counsel travel from Abbotsford to do so.
[35]
The
Respondent argued that online searches were also sufficient alternatives to the
use of courthouse staff to copy cases. The proof for facsimiles and photocopies
is insufficient as to purpose and cost. The Applicant is entitled to only 92
units ($120 x 92 = $11,040) for counsel fees and $1,679.46 for disbursements
plus applicable taxes.
(2) Assessment
[36]
A
recurring concern with copies of case law has been relevance: see para. 111 of Abbott.
The use of an agent affords the potential benefit of full indemnity by
disbursement as opposed to the partial indemnity mandated by the Tariff for the
billable time of counsel. The purpose of this search should have been disclosed
in chief. There is no evidence of the result of the search and its use if any.
[37]
The
agent charges include $25.68 in June 2006 to file a discontinuance. The invoice
does not identify the subject respondent. The Applicant filed a Notice of
Discontinuance on June 14, 2006 for the Respondent, Dr. D. Schwartz. Rule 402
would appear to preclude a claim by the Applicant for costs of the
discontinuance. The Respondent did not object specifically to invoice number
471134 ($70.87 to file the instituting document for the T-320-06 Matter) and
certain other invoices addressing the T-320-06 Matter, but did assert that the
evidence supports an allowance of only $344.28 for agency fees. I find that is
a reasonable result in the circumstances and so allow.
[38]
I
allow courthouse copies as presented at $81.90. The charge ($213.50) for
facsimiles likely included material associated with orders precluding costs. I
allow a reduced amount of $175.
[39]
The
Applicant’s bill of costs, presented at $24,653.89, is assessed and allowed at
$15,850.40.
“Charles
E. Stinson”
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