Date: 20090914
Docket: T-2016-04
Citation: 2009 FC 908
BETWEEN:
SEE YOU IN – CANADIAN ATHLETES
FUND CORPORATION
Applicant
and
CANADIAN OLYMPIC COMMITTEE
Respondent
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Judgment and Judgment dated April 18, 2007, the Court
granted the Applicant’s judicial review with costs at the usual level on a
party and party basis.
[2]
On
June 3, 2009 the Applicant filed its Bill of Costs together with an Affidavit
of Nicole Robert and a letter requesting an assessment of the Bill of Costs.
[3]
On
June 24, 2009 a direction was issued setting a timetable for the filing of
materials.
[4]
The
time limits set by the direction have now passed and both parties have filed
submissions.
[5]
The
Respondent submits that the Applicant’s assessed costs should be reduced by 50%
or more of the costs assessed on the Bill of Costs in view of the restricted
award. The Respondent bases this submission on the fact that the Court, when
dealing with the issue of Public Authority, stated that the Applicant could not
succeed on this aspect of its judicial review.
[6]
In
reply, the Applicant submits that Mr. Justice Phelan was aware that the
Applicant succeeded on but one of the two grounds advanced yet did not order a
reduction or proration in costs as a result.
[7]
Having
reviewed the decision of the Court in its entirety and as submitted by the
Applicant, it is clear that no reduction or proration of costs was directed by
the Court. Without a clear direction I am without jurisdiction to reduce the
costs as assessed. For this reason the Respondent’s request, for a reduction of
the costs assessed by 50% or more of the costs assessed on the Bill of Costs,
is denied.
[8]
At
paragraph 10 of its reply submissions the Respondent states:
The Bill of Costs attempts to assess all
service items at the high end of Column III, however there is no order for
increased costs nor is there any evidence as to complexity or other unique
aspects of this Judicial Review. The Judgment awards costs at the usual level
on a party and party basis. Therefore the service items should at least be
assessed at the mid-level of Column III.
[9]
In
reply the Applicant submits that Column III represents costs at the normal
level and, within such category, the Assessment Officer has discretion within
the range of units set out.
[10]
It
has been well established that when the Court awards costs at the usual level
on a party and party basis, Assessment Officers have discretion within the
range of units under Column III. In
Starlight v. Canada, [2001] F.C.J. No. 1376, the Assessment Officer
held:
The Rules are designed to crystallize the pertinent issues
and eliminate extraneous issues. For example, the pleading and discovery stages
may involve a complex framing and synthesizing of issues leaving relatively
straightforward issues for trial. Therefore, each item is assessable in its own
circumstances and it is not necessary to use the same point throughout in the
range for items as they occur in the litigation. If items are a function of a
number of hours, the same unit value need not be allowed for each hour
particularly if the characteristics of the hearing vary throughout its
duration.
Consequently, I will
assess each Item on its own merit when determining the unit value to be
allowed.
[11]
The
Applicant has claimed Item 1, preparation and filing of originating documents,
at 7 units. Upon reviewing the Application Record it is noted that the Affidavit
of Jane Roos is only 4 pages and covers very general factual issues. Much of the
voluminous material found in the Applicant’s Record is comprised of photocopies
of documents from the Trade-Marks Office. Also, although the Memorandum of Fact
and Law addresses several issues it does not address overly complicated
technical issues. For the above reasons, Item 1 is allowed at 5 units.
[12]
Under
Item 13(a) and 13(b) the Applicant has claimed 5 units and 3 units
respectively. Also, under Item 14(a) the Applicant has claimed 3 units/hour for
10 hours. Having reviewed the Memorandum of Fact and Law of the Applicant and
the Reasons for Judgment and Judgment of the Court and in keeping with my
finding concerning complexity in Paragraph 11 above, I allow assessable
services under Item 13(a) and 13(b) at 3 units each. After reviewing the
Abstract of the Hearing to confirm the duration, I will allow Item 14 at 3
units/hour for a duration of 10 hours.
[13]
The
Applicant has claimed 1 unit under Item 25, services after judgment. The
Applicant submits that services after judgment entailed reviewing the reasons
with the client, advising on appeal possibilities and ensuring that the
Registrar of Trade-Marks countermanded the notices of public adoption. Item 25
is allowed as claimed.
[14]
The
Applicant has submitted two claims under Item 24, “travel by counsel to attend
a trial, hearing, motion, examination or analogous procedure, at the
discretion of the Court” (emphasis added).
[15]
In
Balisky v. Canada (Minister
of Natural Resources) 2004
FCA 123 at paragraph 6, the Assessment
Officer held:
Rule
400(1), which vests full discretionary power in the Court over awards of costs,
means that orders and judgments must contain visible directions that costs have
been awarded. Given the Federal Courts Act, ss. 3 and 5(1) defining the
Court and Rule 2 of the Federal Court Rules, 1998 defining an assessment
officer, the absence of that exercise of prior discretion by the Court leaves
me without jurisdiction under Rule 405 to assess costs.
[16]
Item
24 clearly requires a direction of the Court awarding costs. Having reviewed
the decision of the Court, I am unable to locate a direction of the Court
awarding fees for travel by counsel. In keeping with the above and given the
fact that the Court has not exercised it discretionary power to award travel of
counsel, the claim under Item 24 cannot be allowed.
[17]
The
Applicant has claimed Items 5 (preparation and filing of a contested motion,
including materials in response thereto) and 6 (appearance on a motion, per
hour) at 7 units and 3 units/hour respectively. The motion to which these
assessable services relate is an appeal, by the Respondent, from an order of Madam
Prothonotary Aronovitch on a motion for an extension of time.
[18]
At
paragraph 13 of its submissions the Respondent submits:
The appeal of Madam Prothonotary
Aronovitch’s Order to Mr. Justice O’Keefe was a simple Rule 51 appeal in which
the Applicant only had to file a Reply Memorandum. A reasonable unit number
would be 3. There is no indication in the materials of the Applicant as to any
complexity of the motion.
[19]
In
reply the Applicant submits:
A review of the Reasons on the motion and
appeal demonstrate that the matter was complicated and should not have been
contested by the Respondent.
[20]
In
the decision of Madam Prothonotary Aronovitch it is held that “the Respondent
has protracted and contributed to any resulting delay in making it necessary
for the Applicant to bring the motion”. In his decision, Justice O’Keefe upheld
Prothonotary Aronovitch. Although motions for extension of time are not
generally complicated, this is an appeal by the Respondent from an order on a
motion that the Court found was necessitated by the Respondent. In the
circumstances of this particular case, I will allow Item 5 at 5 units and Item
6 at 1 unit/hour for duration of 1 hour.
[21]
Having
regard to Items 8 (preparation for an examination) and 9 (attending on
examinations, per hour), the Applicant has claimed 5 units and 3 units/hour
respectively. After reviewing the transcripts of cross-examination of Lou
Ragagnin and Jane Roos it is clear that the issues of fact were not overly
complex and do not justify costs at the high end of Items 8 and 9. The
Respondent submits that this item should be assessed at 0 as there are no time
dockets produced by the Applicant. On the other hand, the Respondent does not
dispute the duration of the examinations. Given the length of the transcripts,
particularly that of Lou Ragagnin, I do not find 5 hours for the conduct of the
examinations to be excessive. I will therefore allow Item 8 at 3 units and Item
9 at 2 units/hour for 5 hours.
[22]
Having
reviewed the material filed in support of the Bill of Costs it is noted that
the Affidavit of Nicole Robert provides little assistance, merely stating that
she has reviewed all invoices to the client and correlated the disbursements
made and charged to the client with those in the Draft Bill of Costs. She
further confirms that the disbursements have been made on behalf of the client
and invoiced to it. There is no particularization of the disbursements and no
supporting documentation to justify the disbursements.
[23]
The
Respondent submits:
There is no evidence that any
disbursements were incurred or paid on behalf of the Applicant in this action.
Ms. Robert’s affidavit is equivocal at best. The Court can verify that the
Application issuance fee and Requisition for Hearing fee were incurred from its
records for a total of $100. All other disbursements should be disallowed for
lack of evidence as to what was obtained, how it related to the application,
when it was incurred so its reasonableness and necessity can be assessed.
[24]
In
summary the Respondent submits that, save and except the filing fees of
$100.00, disbursements should be assessed at zero.
[25]
While
I recognize that the evidence presented was negligible, some of the
disbursements claimed are verifiable from the Court Record. Further, although
the Affidavit of Nicole Robert does not confirm payment by the client it does
confirm that the amounts claimed were charged to the client.
[26]
In
Métis National Council of Women v. The Attorney General of Canada, [2007] FC
961 at paragraph 21, the Assessment Officer held:
The less that evidence is available, the
more that the assessing party is bound up in the assessment officer’s
discretion, the exercise of which should be conservative, with a view to
the sense of austerity which should pervade costs, to preclude prejudice to the
payer of costs. However, real expenditures are needed to advance litigation: a
result of zero dollars at assessment would be absurd.
[27]
As
some of the disbursements are not supported by adequate proof, it is not
possible to determine what the disbursements relate to. For example, there are
claims for travel expenses however there is no indication what the specific
expenses were. Without receipts for airfare or hotel accommodation it is
difficult to determine whether a disbursement was reasonable and necessary. There
are several disbursements which cannot be allowed for this reason. For the
above reasons the disbursements for ONBIS Corporate Searches, Government fees –
Profile and Status Certificate, travel expenses for both hearing and cross
examination, fax, telephone, taxi, courier and process server cannot be
allowed.
[28]
The
filing fee for the Notice of Application and Requisition for Hearing are
allowed as claimed, as is the LSUC Transaction Levy.
[29]
I
find it difficult to justify the Trade-Marks Office copy of file history
($447.00) and the Trade-Marks Office fees for certified copies ($700.00). I
have no receipts for either expenditure; however the certified copies of the
Trade-Marks Office files are located on the Court file.
[30]
Concerning
transcripts ($1,044.00) and photocopies ($1,501.77 including fax and telephone),
from a review of the file it is clear that actual expenditure had to have been
made. There are two transcripts and a two volume Applicant’s Application Record
among other documents. On the other hand, the cost of the transcript and
photocopying when calculated per page seems excessive and absent invoices, it
would appear that these disbursements are not reasonable. However, a result of
zero dollars would be absurd.
[31]
Given
the above, in the absence of invoices, I will allow a total of $1,750.00 for
the certified copy of the Trade-Marks Office files, transcripts and photocopies.
[32]
Finally,
the Applicant has claimed 6 units under Item 26 for the assessment of costs.
Given the brevity of the Affidavit of Nicole Robert and the fact that the
Applicant filed no written submissions until after the Respondent’s submissions
in reply, I will allow Item 26 at 2 units.
[33]
For
the above reasons, the Bill of Costs presented at $18,343.47 is allowed for a
total amount of $10,092.40. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
September 14,
2009
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