Date: 20080326
Docket: T-161-05
Citation: 2008
FC 384
Ottawa, Ontario, March 26, 2008
PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
CROCS
CANADA INC. and CROCS, INC.
Plaintiffs
and
HOLEY
SOLES HOLDINGS LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1]
On
February 14 of this year I gave an order dismissing the motion for summary
judgment which had been brought by the defendant and heard in Toronto on
January 31 and February 1. I indicated that I thought that costs should be
awarded approaching a solicitor and client scale and invited written
submissions from both parties within time limits which I specified. Those
submissions have now been received. Plaintiffs have also served and filed reply
submissions although they did not seek prior leave and the initial Order of
February 14 did not provide for such reply; accordingly I have disregarded
those further submissions.
[2]
It
was and is my view that in a case such as this where a defendant moves for
summary judgment it is appropriate to order costs on a higher scale because of
the disproportionate risk which such a motion places on the plaintiffs in
comparison to the defendant. If the motion succeeds the plaintiffs are out of
court and the defendant has the benefit of a final judgment dismissing the
action, normally including costs. On the other hand, if the action survives the
motion it is unfair that the defendant should only have been exposed to costs
of a motion on the ordinary scale of Column III of the Tariff. But, as in every
question regarding costs, every case must be decided on its own merits and the
Court is called upon to exercise its discretion judicially and with regard to
the circumstances and the conduct of the parties. That, of course, includes the
fact that I felt the motion to have little merit; it also includes the nature
of the costs claim now made by plaintiffs and which I analyse below.
[3]
Plaintiffs’
counsel is not modest in his assessment of the value of the services he
has rendered to his client. He seeks a costs order for fees in the amount of
$170,000 together with disbursements in the amount of $7,666.55. This latter
figure is not disputed and will be taken into account in fixing any lump sum
award.
[4]
I find
the plaintiffs’ claim to be exorbitant, unexplained and very largely unjustified.
The amount of fees claimed is said to be less than what was actually charged to
the client; that, of course, is a matter between counsel and his client but is,
in my view, irrelevant to the determination which I am called upon to make
which has to be grounded in my understanding of what is fair and reasonable,
not on inflated amounts which a client with deep pockets may be prepared to
pay. This claim is very far from that standard. It is not the Court's role to
drive the cost of litigation, already too high, into the stratosphere.
[5]
There is serious lack of detail, double
counting and omission in plaintiffs’ claim for fees. There is a claimed amount
of $40,000 at item 8 of the Bill of Costs for two counsel and one clerk for
“preparation” for the hearing. This amount corresponds to what is found at
Column V in Tariff B for which a maximum of $1320.00 could be awarded (or
double that amount for two counsel.) In addition, five separate items related
to “preparation” for the hearing are being requested and have been billed as
follows:
·
$8,000 for the
consideration of the Defendant’s motion;
·
$9,000 for the
preparation of two affidavits;
·
$30,000 for reviewing
transcripts and the supplemental motion record;
·
$30,000 for reviewing
the Defendant’s memorandum of fact and law and amended version and;
·
$14,000 for two
counsel to attend the hearing.
[6]
Making
the assessment even more difficult is the fact that plaintiffs do not give an
hourly rate for any of the lawyers who are said to have worked on the file or
the number of hours allegedly worked by any of them. This leaves me with
nothing to go on other than counsel's own claim, whose defects I have already
commented on, and my own “rough and ready” estimate of what might be had on an
assessment under the Tariff.
[7]
I have
accordingly attempted such a rough estimate on my own. The hearing lasted only
one and a half days and the issues, although important, were not complicated. I
have arrived at a figure of approximately $33,000. In my view a fee award of
this amount would be too generous in the circumstances, especially in the light
of the lack of any detail or rational justification for the amounts claimed. I
would reduce it by $10,000 to arrive at a figure for fees of $23,000. That
would produce a total costs award in a round figure of $31,000 inclusive of all
fees, taxes and disbursements.
[8]
Finally,
it is my view that the defendant's summary judgment motion should not
have been brought and that costs should therefore be made payable forthwith and
in any event of the cause.
ORDER
THIS COURT ORDERS that the
defendant shall pay plaintiffs’ costs on the dismissal of the summary judgment
motion forthwith and in any event of the cause, such costs being hereby fixed
and assessed in a total amount of $31,000 inclusive of all fees, disbursements
and taxes.
“James
K. Hugessen”
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