Date: 20091120
Docket: T-62-06
Citation: 2009 FC 1196
BETWEEN:
BARRY CARR
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Judgment and Judgment dated June 2, 2009, the Court
dismissed the Defendant’s appeal of the Reasons for Judgment and Judgment of
Prothonotary Milczynski dated December 29, 2008. By way of order dated July 30,
2009 the Court ordered that the Plaintiff shall have his costs of the appeal of
Prothonotary Milczynski’s decision, with costs to be calculated in accordance
with the usual Column III of the table in Tariff B.
[2]
On
August 25, 2009 the Plaintiff filed its Bill of Costs together with a letter requesting
an assessment of the Bill of Costs. Upon reviewing the file it was determined
that this was an assessment which would be suitable for disposition by written
submissions. On August 28, 2009 a direction was issued setting a timetable for
the filing of materials. As both parties have filed materials, I will proceed
with the assessment.
[3]
The
Plaintiff has claimed 4 units under Item 4 (Preparation and filing of an
uncontested motion) and 7 units under Item 5 (Preparation and filing of a
contested motion). The Plaintiff has made no specific submissions concerning
these items.
[4]
The
Defendant has submitted three decisions which have held that unless the Court
awards costs of a motion no costs may be allowed by an Assessment Officer: Canadian
Environmental Law Assn. v. Canada (Minister of the Environment [2001] F.C.J.
No. 1110 at para. 33, Fournier Pharma Inc. v. Canada (Minister of Health),
[2008] F.C.J. No. 1151 at para. 17 and Janssen-Ortho Inc. v. Novopharm Ltd.,
[2006] F.C.J. No. 1684 at para. 13.
[5]
Having
reviewed the orders of the Court emanating from these motions, dated December
21, 2007 and February 8, 2007 respectively, it is noted that costs were not
awarded by the Court. This being the case, I am without jurisdiction to allow
costs for these Items, therefore, Item 4 and Item 5 are not allowed.
[6]
The
Plaintiff has claimed 33 units under Item 24 for travel by counsel. This claim
is for several trips by counsel to attend the trial, the appeal and to meet
with the Plaintiff. Once again, the Plaintiff has made no specific submissions
concerning this item.
[7]
Counsel
for the Defendant have submitted two decisions which held that absent a
direction of the Court travel costs for counsel may not be allowed: Sander
Holdings Ltd. v. Canada (Minister of Agriculture), [2009] F.C.J. No. 720 at
para. 15 and; Abbott Laboratories Ltd. v. Canada (Minister of
Health), [2009]
F.C.J. No. 494 at para. 13.
[8]
Further
to the findings above, having reviewed the Reasons for Judgment and Judgment
from the Trial and the Appeal, at no time did the Court award fees for Travel
by Counsel. As Item 24 states that travel by counsel is at the discretion of
the Court and as Rule 2 of the Federal Courts Rules does not include
Assessment Officers in the definition of Court, I am without jurisdiction to
allow costs for this Item, therefore, Item 24 is not allowed.
[9]
Concerning
the appeal of the order of Prothonotary Milczynski, the Plaintiff has claimed 3
units under Item 16, 7 units under Item 19 and 12 units under Item 21. The
Defendant has submitted that Items 16, 19 and 21 relate to appeals to the
Federal Court of Appeal and cannot be allowed. In support of this the Defendant
cited Express File Inc. v. HBR Royalty Inc., [2006] F.C.J. No. 1203 at
para. 2.
[10]
Although
the fact situation here is the converse of that in Express File Inc. (supra),
I am in agreement with the Defendant. As the appeal from Prothonotary
Milczynski was by way of motion to the Federal Court, the appropriate Items are
Item 5 (Preparation and filing of a contested motion) and Item 6 (Appearance on
a motion, per hour). Although the appeal involved several grounds for the
relief sought and recognizing that the Plaintiff was completely successful, the
motion before the Court was not complex, and had duration of just over 2 hours.
Having reviewed the material filed in support of the motion and the Reasons for
Judgment and Judgment of The Honourable Mr. Justice Russell, I allow Item 5 at
3 units and Item 6 at 5 units (2.5 Hrs x 2 units/Hr).
[11]
The
Plaintiff has claimed the remaining Items at the high end of Column III of
Tariff B. In its written submissions the Plaintiff submitted: “Because it was
important to establish a basis of proof that static and dynamic security had
been breached, extreme care had to be used in developing the case and this
ultimately contributed to the complexity of the matter” With the exception of submissions
concerning the factors to be considered in awarding costs, as set out in Rule
400 of the Federal Courts Rules, the Plaintiff makes no further
submissions concerning individual fees claimed.
[12]
Counsel
for the Defendant submitted: “One should not confuse the impact of a judgment
and its complexity”. The Defendant submitted that only 4 units should be
allowed under Item 1 based on the simplicity of the issue and the brevity of
the Statement of Claim. Concerning Item 7, Item 8 and Item 9 the Defendant
submitted that the Plaintiff provided an Affidavit of Documents, all the examinations
were done in writing, were straightforward and should be allowed at 2 units
each. Concerning Item 10 and Item 11 counsel submitted that the case conference
was by teleconference and had duration of only 30 minutes therefore these Items
should be allowed at 3 units and 1 unit respectively. Having regard to Item 13
and Item 14 counsel submitted that the trial dealt with only one issue and the
evidence of the witnesses was brief therefore these Items should be allowed at
3 units and 8 units respectively. Finally, counsel submitted that nothing
should be allowed under Item 25 as no explanation is provided and that Item 26
should be allowed at 3 units as the costs issues were straightforward.
[13]
The
Plaintiff commenced a simplified action on January 12, 2006. The claim was
comprised of four pages with a single cause of action, negligence on the part
of the Correction Service of Canada. Although important to the Plaintiff this
was not an overly complex matter. Very few documents were exchanged and
although there were four witnesses on behalf of the Plaintiff and two witnesses
on behalf of the Defendant, the trial lasted less than one day.
[14]
The
issues before me are very straightforward. Absent specific submissions from the
Plaintiff, it is difficult to determine the justification for claims at the
high end of Column III.
[15]
It
has been held that an Assessment Officer is not required to assess all Items at
the same level within Column III, that each Item should be considered
separately; Nature’s Path Foods Inc. v. Country
Fresh Enterprises Inc., 2007 FC 116. I will therefore proceed
with the assessment of the remaining Items considering each Item separately.
[16]
Item
1 is allowed at 5 units as the Statement of Claim was brief, raises one issue, that
of negligence and the facts of the matter were not complicated.
[17]
This
is a simplified action. Pursuant to Rule 295 of the Federal Courts Rules,
parties may serve a list of documents in lieu of an Affidavit of Documents. As
submitted by the Defendant, the Plaintiff provided an Affidavit of Document on
March 9, 2006. As the Plaintiff provided an Affidavit, even though one was not
strictly required, I will allow Item 7 at 3 units.
[18]
Also,
pursuant to Rule 296 of the Federal Courts Rules, examinations for
discovery in simplified actions are completed in writing. As there is a
requirement to prepare for written examinations, I will allow Item 8 at 3 units.
[19]
The
Plaintiff has claimed 3 units under Item 9. As this examination was in writing,
there was no requirement to attend on examination, therefore, Item 9 is not
allowed.
[20]
Item
10 is allowed at 4 units and Item 11 at 1 unit. The pre-trial conference was
very short and as the resulting order simply sets out the steps to be taken
prior to the trial, it appears the issues discussed were not complicated.
[21]
Item
13 is allowed at 3 units and Item 14 at 11 units. This was a simplified action
with duration of 5.5 hours. Even though the Plaintiff called three witnesses,
the preparation required does not appear to have been complicated or time
consuming.
[22]
Item
25 is allowed at 1 unit. Although the Plaintiff has not explicitly justified
this, it is clear that counsel would have had to communicate the decisions of
the Court to the client.
[23]
Item
26 is allowed at 3 units. This was a straightforward assessment completed in
writing. There were no cross-examinations of the affidavits filed in support of
the assessment and the Plaintiff did not file any rebuttal.
[24]
Having
regard to disbursements, the Plaintiff’s submissions are found at paragraphs 5
and 6 of the Affidavit of Roxann Hill:
5. The disbursements listed are supported
by receipts where applicable. Items requiring payment as set out in the Federal
Courts Rules such as issuing documents, subpoenas and conduct money have
been charged according to the tariff.
6. Office charges such faxes and
telephone calls and postage are charged at the rate of per fax received or sent
and postage represents the amount required to send a letter or document at
Canada Post rates. Telephone charges represent a reasonable charge for long
distance calls made.
[25]
The
Defendant submitted that due to the paucity of evidence provided disbursements
should be assessed conservatively.
[26]
Defendant’s
counsel indicated that the Plaintiff called one expert (Dr. Epelbaum) and two
lay witnesses (Dr. Cheston and Dr. Cassells). It was submitted that fees should
be $100.00 per day for the expert and $50.00 per day for the lay witnesses,
both with reasonable expenses.
[27]
Concerning
photocopies, the Defendant submitted that the Plaintiffs are entitled to the
cost of copy services however disbursements for covers and binding supplies
paid to Ready Print should not be allowed. In support of this counsel relied on
Minde v. Ermineskin Cree Nation, [2009] F.C.J. No. 489 at para. 21. The
Defendant also objects to internal photocopying (937 pages) as they are
considered overhead. In support of this counsel relied on Coppley Noyes
& Randall Ltd. v. Canada (Minister of National
Revenue – M.N.R.), [1993] F.C.J. No. 1378 at para. 9.
[28]
Concerning
Telephone calls, faxes and postage the Defendant submitted that that some costs
were incurred but because of a lack of proper explanation the amounts claimed
for these disbursements should be reduced.
[29]
Concerning
travel the Defendant submitted that as the Plaintiff has not sought recovery of
costs for these amounts, no costs should be allowed.
[30]
Counsel
for the Defendant has characterized Dr. Cheston and Dr. Cassells as lay
witnesses. At paragraph 12 of his Reasons for Judgment and Judgment the
Honourable Mr Justice Russell states: “He (the Plaintiff) did not provide
affidavits from his three expert witnesses: Dr. Cheston, Dr. Epelbaum and Dr.
Cassells”. It is clear that the Court found all three witnesses to be experts.
This finding is sufficient for me to find that all three witnesses should be
considered experts for the purposes of an assessment of costs.
[31]
Tariff
A, section 3 states:
(1)
Subject to
subsection (2), a witness is entitled to be paid by the party who arranged for
or subpoenaed his or her attendance $20 per day plus reasonable travel
expenses, or the amount permitted in similar circumstances in the superior
court of the province where the witness appears, whichever is the greater.
(2)
Where
a witness, other than a party, is an expert witness, the daily rate referred to
in subsection (1) shall be $100.
(3)
A
party may pay a witness, in lieu of the amount to which the witness is entitled
under subsection (1) or (2), a greater amount equal to the expense or any loss
incurred by the witness in attending a proceeding.
(4)
In
lieu of the amounts to which an expert witness is entitled under subsections
(1) and (2), a party may pay the expert witness a greater amount established by
contract for his or her services in preparing to give evidence and giving
evidence.
[32]
As
the Plaintiff’s submissions concerning the expert witnesses are scant and
counsel has not provided invoices or evidence of a contract pursuant to
subsection (4), I am unable to allow the amounts for witnesses as claimed.
Pursuant to Subsections (1) and (2), I will allow $100.00 plus reasonable
travel expenses for a total of $150.00 for each of the witnesses for the day of
the trial.
[33]
The
Defendant not objecting, I will allow for the copy service as claimed. The
Defendant has submitted that covers and binding supplies should not be allowed.
In the Minde (supra) case the disbursement was not allowed as the
binding was performed in house and was considered overhead. This matter may be
distinguished from Minde (supra) as the expenses in this matter
were paid to an external service provider, therefore the cost of covers and
binding supplies are allowed.
[34]
Having
regard to the Defendant’s submission that in house photocopying should be
considered overhead, the case referred to is in excess of sixteen years old. It
has been consistently held since then that reasonable in house photocopy
charges are allowable. I find the amounts claimed to be reasonable in the
circumstances of this file, therefore, in house photocopying is allowed as
claimed.
[35]
I
agree with the Defendant that the claims for telephone and postage lack proper
explanation. There is no particularization as to the reason for the calls or
what the postage was used for. These amounts are not allowed.
[36]
Concerning
faxes, I will allow this disbursement. Transmitting documents by facsimile has
become the norm in many circumstances. The Federal Courts Rules allow
documents to be served and filed by facsimile. Given this, I am of the opinion that
reasonable disbursements for facsimile transmissions should be allowed. Having
reviewed the file I find the amounts claimed to be reasonable and allow them as
submitted.
[37]
Concerning
travel disbursements, I am in agreement with the Defendant. Even though the
Plaintiff has submitted receipts for travel, these disbursements cannot be allowed
as they are not claimed in the Bill of Costs.
[38]
For
the above reasons, the Bill of Costs presented at $18,591.78 is allowed for a
total amount of $6,877.24. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
November 20,
2009
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