Docket: T-484-11
Citation:
2013 FC 1263
ACTION
IN REM AGAINST THE SHIP “MCP ALTONA” AND IN PERSONAM
BETWEEN:
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CAMECO CORPORATION
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Plaintiff
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and
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THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP “MCP ALTONA”, THE
SHIP “MCP ALTONA”,
MS ‘MCP ALTONA’ GMBH & CO KG, HARTMANN SCHIFFAHRTS GMBH
& CO, HARTMANN SHIPPING ASIA PTE LTD., FRASER SURREY DOCKS LP AND
PACIFIC RIM STEVEDORING LTD.
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Defendants
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REASONS FOR ASSESSMENT OF COSTS
Johanne Parent, Assessment Officer
[1]
On January 10, 2013, the Court issued Reasons
for Order and Order regarding the distribution of the proceeds of the judicial
sale of the Ship MCP Altona and granting the payment out to the Caveator HSH
Nordbank AG [Nordbank]. Further to the filing of a Motion for Costs by
Nordbank, on February 20, 2013 the Court issued Reasons for Order and Order
with regards to the costs on the Priorities Motion [the Costs Order], ordering
that costs be taxed in favour of Nordbank at the low-end of Column IV of Tariff
B and that Nordbank be entitled to reasonable disbursements, including the
reasonable cost of translation from German to English, and the costs of travel
from Vancouver to Ottawa for the purposes of arguing the Priorities Motion.
Upon receipt of Nordbank‘s Bill of Costs on July 12, 2013, Directions were
issued at the party’s request, informing Nordbank and the Plaintiffs Cameco
[Cameco] that the assessment of costs would proceed in writing and of the
deadline to file their representations. The affidavits and representations
having been filed on behalf of both Nordbank and Cameco, I will now proceed
with the costs assessment.
[2]
At the outset, concerning the units claimed by
Nordbank for the various assessable services, I examined the argument of
Nordbank’s counsel that the Costs Order “is a general guideline and does not
prevent the assessment officer from actually reviewing the actual work required
to be done for each tariff item by the party entitled to costs”. I do not agree
with this contention. As argued by Cameco’s counsel, the Court’s Order and
Direction are not a recommendation or a suggestion. All the parties’ arguments
regarding the complexity of the case were put before the Court and with an
in-depth knowledge of the file and the parties’ arguments throughout, the Court
had full discretionary power over the allocation of costs pursuant to Rule
400(1) of the Federal Courts Rules. Further to my reading of the Costs
Order and the Court’s Direction of March 25, 2013, there is no doubt that the
Court, in directing the assessment officer on the scale of costs to be
assessed, clearly exercised his discretion as established by the Rules. The
assessment officer holds no authority to review this decision. Keeping this in
mind, I will now review the assessable services claimed by Nordbank.
[3]
Five units are claimed under Item 1 for the
preparation and filing of a Caveat. In response, Cameco contends that Item 1
refers to “originating documents” as defined by Rule 2 of the Federal Courts
Rules as a document “referred to in Rule 63” and that a caveat does not
fall within the parameters of Rule 63. In reply, Nordbank argues that “tariff
item 1 reflects the first document originating a proceeding” and considering
the Caveat was the originating document for Nordbank in this proceeding, the
Tariff should not be interpreted narrowly. In reply, Cameco argues that
Nordbank did not commence an action, but Cameco did and in addition arrested
the Ship. The Caveat did not originate the action, the Statement of Claim did.
[4]
Item 1 to Tariff B refers to the “preparation
and filing of originating documents, other than a notice of appeal to the
Federal Court of Appeal, and application records”. The definition of
originating document at Rule 2 of the Federal Courts Rules refers to
Rule 63 that reads:
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63. (1) Unless otherwise provided
by or under an Act of Parliament, the originating document for the
commencement of
(a) an
action, including an appeal by way of an action, is a statement of claim;
(b) a
counterclaim against a person who is not yet a party to the action is a
statement of defence and counterclaim;
(c) a
third party claim against a person who is not yet a party to the action is a
third party claim;
(d) an
application is a notice of application; and
(e) an
appeal is a notice of appeal.
(2) Where
by or under an Act of Parliament a proceeding is to be commenced by way of a
document different from the originating document required under these Rules,
the rules applicable to the originating document apply in respect of that
document.
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63. (1) Sauf disposition contraire
d’une loi fédérale ou de ses textes d’application, l’acte introductif
d’instance est :
a) une déclaration, dans le cas d’une
action, notamment d’un appel par voie d’action;
b) une défense et demande
reconventionnelle, dans le cas d’une demande reconventionnelle contre une
personne qui n’est pas partie à l’action;
c) une mise en cause, dans le cas de
la mise en cause d’une personne qui n’est pas partie à l’action;
d) un avis de demande, dans le cas
d’une demande;
e) un avis d’appel, dans le cas d’un
appel.
(2) Lorsqu’une
loi fédérale ou un texte d’application de celle-ci prévoit l’introduction
d’une instance au moyen d’un document autre que l’acte introductif d’instance
visé au paragraphe (1), les règles applicables à ce dernier s’appliquent à ce
document.
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Even in
considering the second paragraph of Rule 63, as suggested by Nordbank, I cannot
come to the conclusion that a caveat as defined by Rule 493 is an originating
document. Further, as argued by Cameco, Nordbank did not commence the action
before the Court, Cameco did, by filing a Statement of Claim on March 22, 2011.
Therefore, the unit claimed under Item 1 will not be allowed.
[5]
Four units are claimed for the preparation and
filing of the uncontested Motion for Sale of the “MCP Altona”(Item 4). Cameco
does not contest the validity of this claim, only the number of units demanded.
However, and despite Nordbank’s arguments regarding the complexity of the
matter, I agree with Cameco’s argument that the Court’s Order and Direction are
not a recommendation or a suggestion. The Costs Order awards fees at the low
end of Column IV to Tariff B which provides for a range of 2 to 5 units. As
mentioned earlier, I do not take the Court Order as a broad guideline but as a
clear indication of the Court’s intent as per Rule 400(3). The Court specified
in the Costs Order that costs be taxed “at the low end of Column IV”, not at
“at the lower end of Column IV”. I consider that it limits the assessment
officer to the bottom of the scale to the Column and does not justify the use
of a bracket of available units at the lower end. I am mindful that a different
wording could have opened the possibility for the assessment officer to use a
range of units found at the bottom end of the scale but this is not the case
here. For these reasons, two units are allowed under Item 4.
[6]
The assessable services and number of units
claimed under Item 10 for the preparation of Case Management Conferences – May
12, 2011, June 13, 2011, August 3, 2011, October 19, 2011, December 13, 2011
and January 31, 2012 are not contested and allowed as claimed at the low end of
Column IV. On the other hand, the number of units claimed for the attendance at
each of these Case Management Conferences (Item 11) is contested as it does not
reflect the low end of Column IV. As per rationale previously enunciated, the
number of units will be reduced to reflect the low-end of Column IV i.e. one
unit, multiplied by the actual time each conference lasted. As a result, a
total of 8.5 hour/units are allowed under this Item: May 12, 2011(1,5), June
13, 2011(1), August 3, 2011(1,5), October 19, 2011(2), December 13, 2011(1,5)
and January 31, 2012(1). The number of units claimed under Item 6 for the
appearance on a motion is not contested and allowed as claimed.
[7]
Nordbank has submitted two claims under Item 7, one for discovery of
the Caveator’s documents (6 units) and one for discovery of Cameco’s documents
(8 units). In response to these claims, counsel for Cameco submits that the
Costs Order provides for costs at the low end of Column IV and that the
discovery of documents “encompasses both as the Tariff item uses the words
“including listing, affidavit and inspection”. That would mean the Tariff item
includes both listing one’s own documents, preparing one’s own affidavit of
documents, and inspecting the opposition’s documents”. With regards to the
Caveator Discovery of Documents, counsel for Nordbank contends that a very
large number of documents had to be reviewed and that “although costs generally
were allowed at the low end of Column IV, it would be completely unjust and
inequitable to allow only 3 units…”. Concerning the Discovery of Documents re:
Cameco, it is argued that “item 7 should be interpreted to provide for
discovery of documents of both parties to an action”. It is further submitted
that the “fact that the Tariff item includes listing affidavit and inspection
does not indicate that only one item is assessable”.
[8]
In response, counsel for Cameco submits that
Item 7 applies to both the party’s own documents as well as the opposite
parties’ documents, adding that the Court in awarding costs at the low end of
Column IV was fully aware of the nature and manner in which documentary
productions were exchanged between the parties, and had already dealt with the
issue of documentary production and its associated volume at paragraph 13 of
the Costs Order:
13. The Bank is
correct in saying that in order to understand Cameco’s claim for priority, it
had to review the affidavit of documents in the cargo claim. There were over
20,000 of them. Again, this is not unusual in applications. In PM (NOC)
applications referred to above, the record may easily comprise 40 or more
volumes.
[9]
In conformity with the decisions in Early Recovered Resources Inc. v Gulf Log Salvage Co-Operative
Assn., 2001 FCT 1212
(par.14) and Distrimedic
Inc. v Dispill Inc., 2011 FC 410 (par.64), I too consider
that Item 7 can be claimed and allowed, when properly justified as is the case
here, more than once. However, considering the award of costs at the low end of
Column IV, three units will be allowed for each claim.
[10]
Cameco did not take issue with Nordbank's claims
under Item 8 for the
preparation of the cross- examinations of W. Summach and K. Guenther, four
units will be allowed for each claim.
[11]
On the other hand, in consideration of the exact
duration of the cross-examinations of W. Summach, K. Guenther and J. Schelp, as
pointed out in the Affidavit of Marc D. Isaacs affirmed September 10, 2013 [the
Isaacs Affidavit], counsel for Cameco questions the duration and the number of
units claimed under Item 9, arguing that as per the Costs Order, the low end of
the Tariff under this Item is 0. In response, counsel for Nordbank contends
that the jurisprudence of this Court (Janssen Inc. v Teva Canada Ltd.,
2012 FC 48, par.45 [Janssen]) has established that “brief recesses and
breaks are not deducted for the time calculation for trial, or for
cross-examination of a witness on his or her affidavit.” In rebuttal, counsel
for Cameco reaffirms that the low end of Item 9 is 0 and contends that, in
Nordbank’s argument, was overlooked paragraph 44 of the Janssen decision
which states that: “…it has been held on many occasions that the time for lunch
breaks should be factored out of any calculation for counsel time per hour in
Court…”
[12]
As previously mentioned, the Costs Order
stipulates that assessable services may be claimed at the low end of Column IV.
Under Column IV, the low end of the range for Item 9 is zero units. Therefore,
in keeping with the provision of the Costs Order, zero units will be allowed
for the cross-examinations of W. Summach, K. Guenther and J. Schelp, albeit it
is manifest that time was spent toward these cross-examinations.
[13]
Six units have been claimed for the preparation
for the Priorities Motion held in Ottawa on December 18 and 19, 2012 (Item 13).
Counsel for Cameco argues that only five units should be allowed while counsel
for Nordbank contends that an allocation of six units is reasonable considering
the complexity of this hearing. As per the Costs Order and the number of units
specified at the low end of Column IV, five units will be allowed.
[14]
With regards to the claim for attendance of
counsel at the hearing (Item 14), counsel for Cameco argues that Nordbank’s claim
should be reduced to reflect the fact that part of the hearing “involved the
Bank’s unsuccessful appeal of the Assessment Officer’s Order in relation to the
Sheriff’s costs”. In response, counsel for Nordbank contends that approximately
15 minutes was in connection with this appeal.
[15]
The Minutes of Hearing found in the Court Record
indicate that the appeal of the assessment officer’s decision on the Sheriff’s
costs lasted 24 minutes of the two day hearing. Costs on this appeal having
already been dealt with by the Court, I have reduced the number of units from
14 units/hours to 13 units/hours.
[16]
Counsel for Nordbank claims several units under
Item 24 for counsel to travel to attend cross-examinations and hearing: Vancouver to Saskatoon (2 units), Saskatoon to Vancouver (7 units), Vancouver to Ottawa (5 units) and Ottawa to Vancouver (5 units). In response, counsel for Cameco
contends that the Costs Order does not provide for travel between Vancouver and
Saskatoon but for cost of travel in relation to the priorities hearing in
Ottawa and that Nordbank’s request of 5 units each way for the travel to Ottawa
is contrary to the Costs Order in that the number of units claimed is not at
the low end of Column IV. It is further stated in the Isaacs Affidavit, attaching
the Court’s Direction of March 25, 2013 and letters from counsel for Nordbank
and Cameco, that the issue of travel costs between Vancouver and Saskatoon had
been dealt with by the Court when Mr. Justice Harrington directed that he was
not prepared to entertain a motion for reconsideration of the Costs Order. In
rebuttal, counsel for Nordbank refers to the duration of that trip as a
consequence of the winter weather conditions in Saskatchewan and Alberta, further arguing that the effect of the Court Direction was “to leave this issue to
the assessment officer”.
[17]
At paragraph 20 of the Costs Order, the Court
states: “The Bank shall also be entitled to reasonable disbursements,
including…the costs of travel from Vancouver to Ottawa for the purposes of arguing
the priorities motion.” In the Direction of March 25, 2013, the Court,
referring to the parties’ written representations on Nordbank’s request for
reconsideration of the Costs Order on this specific issue, directs that “it is
not prepared to entertain a motion for reconsideration of the Order dated 20
February 2013”. As put by counsel for Nordbank in his letter of March 14, 2013
requesting a direction that Item 24 for the travel to and from Saskatoon be
allowed, “…absent a direction from the Court, travel costs for counsel may not
be allowed (Carr v Canada, 2009 FC 1196)…” Given that Item 24 clearly
states that travel by counsel is at the discretion of the Court and that
assessment officers are not considered in the definition of Court as per Rule 2
of the Federal Courts Rules, I am without jurisdiction to allow costs
under Item 24 as the Court did not exercise its discretion. Therefore, the
units claimed for the travel portion to Saskatoon and back are disallowed.
Further, in consideration of the Costs Order, the units claimed under Item 24
for travel from Vancouver to Ottawa and Ottawa to Vancouver are allowed at the
low end of Column IV.
[18]
Cameco did not take issue with Nordbank's claims
under Items
25 (services after judgment) and 26 (assessment of costs). They
are allowed as claimed.
DISBURSEMENTS
Photocopies
[19]
The amounts of $9,704.75, $2,105.63 and
$706.00(colour printing) are claimed for photocopies in Nordbank’s Bill of
Costs. The Affidavit of David F. McEwen sworn July 11, 2013 [the McEwen Affidavit]
attaches three documents entitled “Cost Recap. Summary by Cost Code” for
client: 204744 – HSH Nordbank AG. The documents refer to the total number of
copies, black and white printing and colour printing for three different time
periods between November 30, 2011 to “present”. The Affidavit further
stipulates that the claims for black and white printing and copies were reduced
to reflect $0.25 per page instead of the $0.30 per page charged to the client.
With respect to the colour photocopies, the affiant specifies that the charges
per page were brought down to $1.00 per page.
[20]
In response, the Isaacs Affidavit states that
Nordbank seeks the reimbursement for 55,664 photocopies, claiming that the
number of photocopies is grossly exaggerated. Corroborated by the system
Cameco’s law firm utilises to collect data for their clients, Mr. Isaacs
affirms that the total number of photocopies incurred by their office for this
client, was approximately 18,500 copies. Citing the numerous legal issues
involved in this matter, it is further stated that, as counsel to Cameco, they
were “dealing with litigation of many orders of magnitude and complexity as
compared to the priority dispute matter. The priority dispute was only one of
the many aspects to which the 18,500 photocopies would have applied”. It is
further contended that the Priorities Motion Record itself was measured to be
approximately 1.75 inches thick and “even assuming that the motion record,
books of documents and books of authorities, were a total of 8 inches thick at
500 pages per 2 inches, this equates to approximately 2,000 pages. Multiplied
by 5 for photocopying for Court submissions purposes (…) this equates to
roughly 10,000 pages, or less than 20% of the amount claimed”. In addition, it
is mentioned that Cameco’s counsel delivered its productions in electronic
format using an external hard drive, taking the “unusual step of accommodating
opposing counsel in this matter by creating not only a list of documents and
productions, but also creating a fully searchable and hyperlinked database”,
this system eliminating the need for costly and wasteful photocopying. With
regards to the colour photocopies, Mr. Isaacs states that the 706 colour copies
were not included in the Motion Record or other documents submitted in
connection with the priorities dispute. In Cameco’s Written Representations on
costs, it is argued that the number of photocopies claimed is out of “scope and
scale of the litigation in which the bank was involved” and “was either not
incurred or if it was, it was not reasonable and necessary for the conduct of
the priorities hearing”. It is further acknowledged that photocopies are
required in any litigation and that $0.25 per page is a proper amount but
evidence needs to lead to the necessity of the photocopies in the conduct of
the litigation (Diversified Products Corp. v Tye-Sil Corp., [1990]
F.C.J. No.991). The only evidence that they were charged to the client is
insufficient to support the claim, “there needs to be evidence as to what was photocopied
and the necessity for it” (Windsurfing International Inc. v BIC Sports Inc.,
[1985] F.C.J. No.826). It is further alleged that although disbursements can be
established via an affidavit, the reasonableness of the expense cannot, leaving
the assessment officer with the discretion to review the amount claimed to a
more reasonable amount (Abbott Laboratories v Canada [2009] F.C.J.
No.494). Counsel for Cameco therefore submits that the claim for photocopies
should be reduced from $12,516.38 to $1,250.00, representing 5,000 pages at
$0.25 per page.
[21]
In response, the Affidavit of David F. McEwen
sworn September 26, 2013 [the second McEwen Affidavit] states that both
counsels’ offices deal with documents in a different manner. While counsel for
Nordbank produced hard copies of most relevant documents, Cameco’s documents
were never printed out. As an example, it is mentioned that the exhibits to the
Affidavits of Mr. Summach and Ms. Guenther were submitted on discs by Cameco
while counsel for Nordbank printed them out taking up to five 3-1/2” binders
for Ms. Guenther and two 3” binders Mr. Summach. Mr. McEwen confirms that the
Motion Record was approximately 500 pages but over the required copies for the
Court and the parties, was further delivered to the Court and Cameco’s counsel
the exhibits from the cross-examination of Mr. Summach which contained 113
documents (596 black and white copies and 32 colour copies) and one exhibit to
Ms. Guenther’s containing 79 pages including several colour photocopies. Referring
to Cameco’s hard drive listing 21,816 documents, the affiant states that the
Affidavit of Documents itself, not inclusive of the documents, filled a 3-1/2”
binder, that not all documents were relevant, that they were not identified
properly and needed to be reviewed and printed in order to be used in the
cross-examination of the deponents. It is estimated that if Cameco’s documents
were printed out, they would amount to more than 100,000 copies. It is further
stated that “at the cross-examination of the Cameco witnesses, Cameco had all
of the documents on their hard drive, whereas the Bank had 3 full banker’s
boxes of documents, many of which were put to the witnesses, and marked on the
cross-examinations, and later provided to the Court with the transcripts of the
cross-examinations”. With regard to the colour copies, Mr. McEwen affirms that
a number of the cargo and the discharge process photographs produced by Cameco
were printed and some of them placed in the cross-examination exhibits book. In
their Written Representations, Nordbank argues that they are claiming 47,242
photocopies, not 55,564 as stated by Cameco.
[22]
In reply, counsel for Cameco contends that the
“extent of photocopies and printing were the result of counsel for the Bank’s
reluctance or refusal to adopt the electronic documentation provided by counsel
for Cameco” and that Nordbank’s counsel had chosen to print out the documents,
rather than view them electronically. Lastly, it is argued at paragraph 26 in
Cameco’s Reply Written Representations that:
26. The fact remains,
that most of the photocopying and printing out of documents were for the ease
of counsel for the Bank in relating to the documents, rather than for
presentation of the case in Court. As has been noted by this Court in other
assessments: there must be evidence justifying the necessity of the photocopies
claimed: a law office is not in the business of making a profit on its
photocopying equipment; and photocopies are an allowable disbursement only if
it is essential to the conduct of the action (Janssen at paragraphs 63
and 65)
[23]
Mr. McEwen attempted to establish through his
Affidavit the disbursements incurred for photocopies as well as their
reasonableness. Tariff B1(4) provides that no “disbursement…shall be assessed
or allowed under this Tariff unless it is reasonable and it is established by
affidavit or by the solicitor appearing on the assessment that the disbursement
was made or is payable by the party”. The supporting evidence on this issue is
far from exhaustive and does not assign to counsel, in place of the assessment
officer, the responsibility to decide reasonableness (Abbott Laboratories v Canada, 2008 FC 693,
par.63 & 64 [Abbott]). The three “Costs Recap. Summary”
documents submitted in support of the disbursements claimed only serve to prove
that a number of copies were made between November 30, 2011 to the date the
file was finalized. The reference in the counsel’s representations to the
larger documents copied i.e. the Motion Record, the Affidavit of Documents and
exhibits to cross-examinations provide an idea of an approximate number of
copies made once one looks at the Court Record. It is apparent that real costs
were incurred and as held in Sarasin Consultadoria e
Servicios LDA v Roox's Inc., [2005] F.C.J. No. 907,
the absence of exhaustive proof should not preclude recovery of these expenses.
Nonetheless, after my review of the record and the arguments before me, I find
that the evidence provided in this matter is not sufficient to justify the
total number of copies claimed. In the circumstances, I find the comments made
in Abbott (previously cited) to be useful:
[70]
I still hold to my view, often expressed further to my
approach in Carlile (decided May 8, 1997) and the sentiment of Lord
Justice Russell in Re Eastwood (deceased) (1974), 3 All.E.R. 603 at
608, that assessment of costs is “rough justice, in the sense of being
compounded of much sensible approximation,” that discretion may be applied to
sort out a reasonable result for costs equitable for both sides. I think that
my view is reinforced by the editorial comments (see: The Honourable James J.
Carthy, W.A. Derry Millar & Jeffrey G. Gowan, Ontario Annual Practice
2005-2006 (Aurora, Ont: Canada Law Book, 2005)) for Rules 57 and 58 to the
effect that an assessment of costs is more of an art form than an application
of rules and principles as a function of the general weight and feel of the
file and issues, and of the judgment and experience of the assessment officer
faced with the difficult task of balancing the effect of what could be several
subjective and objective factors.
[24]
The Federal Court of Appeal also
commented on the subject of “rough justice” in Merck & Co. v Apotex Inc.
2008 FCA 371:
14 In view of the limited material available to
assessment officers, determining what expenses are "reasonable" is
often likely to do no more than rough justice between the parties and
inevitably involves the exercise of a substantial degree of discretion on the
part of assessment officers. Like officers in other recent cases, the
Assessment Officer in this complex case, involving very large sums of money,
gave full reasons on the basis of a careful consideration of the evidence
before him and the general principles of the applicable law.
[25]
The “rough justice” approach is not to suggest
that parties need not provide sufficient evidence, and to only rely on the
discretion and experience of the assessment officer. I see the role of the
assessment officer, while faced with less than exhaustive evidence, and as real
disbursements were incurred, to ensure that the successful party is not denied
reasonable indemnification while the unsuccessful litigant is not burdened with
unreasonable costs. In consideration of the required number of copies for the
filing and service of the Priorities Motion Record and the List of Documents
and productions associated to the cross-examinations (inclusive of the
documents served and filed with the Court), multiplied by $0.25 per page
(amount uncontested by the parties), I have roughly estimated the amount to
$4600.00 for black and white photocopies. With regard to the availability of
the List of Documents and productions in electronic format, I appreciate, when
considering the number of copies handled by the parties in this matter, counsel
for Cameco’s intention in trying to eliminate unnecessary photocopies. However,
my reading of the affidavits leads me to believe that this cost saving/waste
reduction method of proceeding had its limit during the cross-examinations and
for the filing with the Court and I, therefore, did not take it into
consideration in my decision. Lastly, in consideration of the specific evidence
before me, the amount claimed for the colour printing has been reduced to
$60.00.
[26]
Counsel for Nordbank agreed in their representations
in reply that the third party copying charges claimed for the copy of the hard
drive from Giaschi & Margolis should be deducted from their Bill of Costs.
This claim will therefore be taxed at zero.
Vancouver Sun (Advertise Legal Notice)
[27]
A disbursement of $3,104.64 is claimed in the
Bill of Costs in relation with the advertisement of the sale of the Ship “MCP
Altona”. In response, paragraphs 9 to 11 of the Isaacs Affidavit state that
this invoice was already included in the Sheriff’s Bill of Costs and had
already been “agreed to by Cameco as part of the properly payable Sheriff’s
costs”. The affiant further mentions that this invoice relates to the judicial
sale of the Ship and is not related to the priorities dispute between Nordbank
and Cameco. Cameco’ Written Representations specifies that this expense would
have been incurred in any event of the priorities dispute, in order to carry
out the judicial sale of the Ship. It is further contended that this claim is
inappropriate as the invoice has already been paid to Nordbank as part of the
Sheriff’s costs.
[28]
In reply, it is stated in the second McEwen
Affidavit that the Court Order of August 4, 2011 ordering the sale of the Ship
“MCP Altona” dealt with the procedure regarding claimants and the establishment
of their respective priorities. At paragraph 8 of the McEwen second Affidavit,
it is further mentioned that:
8. In respect of
paragraph 10 of the Affidavit of Mr. Isaacs, as found by Mr. Justice Harrington
at paragraph 2 of his Reasons for Order on January 10, 2013, the balance owing
to the Bank was more than Euros 6,862,139.60 while the Vessel was sold for
US$4,800,000.00. The point for determination is simply that although the
Sheriff’s costs were approved by Cameco and allowed by the Court, they have not
been repaid to the Bank, as they were paid out of the Fund which represented
only a portion of the Bank’s debt, which fund was much smaller than the
mortgage debt owing to the Bank, therefore, in effect, the Bank has paid
itself, and Cameco has not paid any of these invoices”.
[29]
In rebuttal, counsel for Cameco submits in his
Written Representations that the Sheriff’s costs are payable by the Fund and
are not payable by either party. At paragraph 29, it is further argued:
29. It is the amount
left over from the sale fund, following deduction of the Sheriff’s costs that
is distributed to the parties, based on their priority. There was a shortfall
for which the Bank now tries to shift an additional amount onto Cameco’s
shoulders by trying to classify it, improperly, as a litigation disbursement.
With regards to
Nordbank’s argument that they could have obtained more money if Cameco had not
made a claim, reference is made to paragraphs 15 and 16 of the Costs Order in
which the Court states that Nordbank could not have moved the Ship to the Far
East and obtain a better price, adding that “it is illusory to think that the
Bank under a power of sale in its mortgage could have achieved a better price”
adding further that “Cameco had a reasonable arguable case and was entitled to
arrest the ship”.
[30]
The disbursement associated to the advertisement
of the sale of the Ship “MCP Altona” is disallowed. As put by counsels, this
disbursement had already been claimed and allowed in the Sheriff’s Bill of
Costs, to be paid out of the Fund. I do not consider this expense to be related
to the priorities dispute between Cameco and Nordbank as the sale of the Ship
was clearly an expense incurred by the Sheriff in the performance of his duties
as per the Court Order of August 4, 2011. The expense claimed would have had to
be incurred in any event and is not in relation to the dispute between Cameco
and Nordbank regarding the entitlement of the sale proceeds. Nordbank cannot
utilize this costs assessment to get reimbursed for any expenses for which they
experienced a shortfall in the process.
Postage and long
distance telephone charges
[31]
The charges incurred for postage and long
distance telephone are listed in the exhibits to the Affidavit under “Costs
Recap. Summary by Costs Code”, that show the total expenditures incurred by the
law firm. The McEwen Affidavit states that these disbursements are in-house
charges for which no invoices had been generated.
[32]
In response, Cameco’s counsel argues that the
amounts should be disallowed as no evidence and proper particularisation have
been offered as to the necessity and reasons for those expenses.
[33]
In reply, the second McEwen Affidavit states
that counsel for Cameco are located in Toronto, Ontario and their client
Nordbank and its representative are located in Hamburg, Germany and that it was
necessary to communicate by mail and by long distance telephone on many
occasions, adding that all the calls made were not charged.
[34]
In the conduct of a matter of this type, I
accept that, considering the location of Cameco’s counsel (Toronto, Ontario), Nordbank (Hamburg, Germany) and Nordbank’s counsel (Vancouver, British Columbia)
minimal disbursements were incurred and made necessary for postage and long
distance telephone charges. I consider the amounts claimed reasonable and they
are allowed as claimed.
Scanning
[35]
The McEwen Affidavit asserts that the
disbursements claimed for scanning are in-house charges for which no invoices
had been generated. The total charges incurred by the law firm are listed in an
exhibit to the Affidavit, i.e. the “Cost Recap Summaries” as generated by the
law firm accounting department and showing the total charges incurred for the
scanning service.
[36]
In response, Mr. Isaacs in his Affidavit states,
copies of letters and invoice in support, that the scanning charges have
already been paid. After having received the Affidavit of Documents, he affirms
that he had requested from Nordbank’s counsel its production in electronic
format and that before doing so, he had to pay the law firm the sum of $353.02,
as demanded for the scanning charges. In his Written Representations, counsel
for Cameco argues that the amount claimed appears to be excessive as the only
documents scanned and provided to counsel for Cameco were related to Nordbank’s
Affidavit of Documents.
[37]
In his second Affidavit, Mr. McEwen states that
the charges related to the documents, as referred to in Mr. Isaacs’ Affidavit
are not included in the Bill of Costs. He further points out that “many of the
pleadings, letters, motion records etc. were served electronically, and
therefore there were scanning charges in respect of almost every filing with
the Court”, sometimes at the Court’s request. Nordbank’s Written
Representations further mentions an agreement between the parties that all
documents other than the lengthy ones, were scanned and exchanged by e-mail.
[38]
In rebuttal, counsel for Cameco contends that
other documents may have been scanned, to be sent out to the parties, but these
are part of the law firm’s overhead; it is the same as printing a document and
sending it by mail. All the charges for the documents scanned and provided for
Cameco’s counsel use have on the other hand been paid.
[39]
The evidence provided for this claim is far from
extensive and I fail to see, but for the Priorities Motion Record and related
documents i.e. affidavits and exhibits, any evidence of documents served and
filed with the Court in relation with the priorities issue that could have been
scanned and for which charges had not already been reimbursed. Neither party
referred to the scanning of the Priorities Motion Record nor can I find
evidence on the matter. Considering its volume and the contention before me
regarding the agreement of parties on the scanning of lengthy documents, I take
that no charges are claimed for the scanning of the Priorities Motion Record.
Undoubtedly, other documents have most likely been scanned in the course of the
dispute between Cameco and Nordbank but no evidence has been brought before me
to help evaluate the reasonableness of this claim. Considering the lack of
information to help substantiate the documents scanned, the necessity for
scanning said documents and whether the scanning charges claimed were related
to the issue at hand, this expenditure will be assessed at zero.
Translation fees
[40]
Translation fees are claimed in the amount of
$16,000.00. In support, invoices provided by Sievers-Redekop Law Corp. are
attached to the McEwen Affidavit. As per Mr. McEwen, the charges claimed
represent the “services of a German lawyer, who is also a member of the British
Columbia Bar, to attend at AHBL (Alexander Holburn Beaudin & Lang) and to
provide a rough translation of the numerous documents that our client has
provided to us.” The affiant mentions that in his opinion the translation
services were necessary as neither himself nor his colleagues could understand
the thousands of e-mails and documents from his client. The services of
Sievers-Redekop Law Corp. were chosen as a cheaper option to having all the
documents completely translated in the English language.
[41]
In response, Mr. Isaacs in his Affidavit affirms
that the documents in connection with the priorities dispute contained very few
German language documents which had been translated into English. From his
review of the Motion Record, the German documents that were translated into
English and submitted to the Court included the mortgage documents, documents
from the German Insolvency Court and some invoices from Hartmann Schiffahrts.
It is further added that Mr. Isaac’s office was not provided with the
translation of the German documents and that some of the documents, namely
invoices, were already paid as part of the Sheriff’s Bill of Costs. Mr. Isaacs
adds that no translations of Sievers-Redekop Law Corp. were provided to
Cameco’s counsel or submitted to the Court or filed as part of the Motion
documents. Lastly, Mr. Isaacs attests that the charges are excessive
considering that, in the preparation for the hearing of this matter, his office
also retained German to English language translation assistance. As per
invoices attached to the Affidavit, said interpreter attended his office for
three days to review documents at $525 per day.
Counsel for Cameco
further argues in the Written Representations that the amount of $16,000.00
“for nine days of German speaking lawyer’s time” should not be allowed. The
translated documents were not submitted to the Court in connection with the
priorities dispute. Out of the documents included in the Court record, it is
argued that the “translation of the mortgage documents were necessary on the
motion for sale of the vessel and would have been incurred even if there was no
competition for the proceeds of sale or a priority dispute between the Bank and
Cameco”. Further, the mortgage on the Ship was not contested by Cameco. It is
argued that the “translation costs sought is for that of a lawyer’s time rather
than a translation service” and that Sievers-Redekop Law Corp. acted as agents
of Nordbank, which costs are not recoverable as disbursement under the Tariff.
If the costs were incurred to review documents, it is contended that it is not
a disbursement as it is captured under Item 7 of the Tariff (Mathias v
Longpoint First Nation [2012] F.C.J. No.183 at paragraph 22). It is further
submitted that
“…the incurring of
translation costs to this extent was unnecessary. The instructing client for
the Bank, who swore the Affidavit of Documents as well as attended at the
cross-examinations on behalf of the Bank, Mr. Joerg Schelp, is fluent in
English. Mr. Schelp was cross-examined in Vancouver, in the English language,
without the assistance of an interpreter. The documents which are involved are
the Bank’s own internal documents and correspondence. There is no reason why
these documents, to the extent any interpretation may have been necessary for
counsel’s own benefit, could not have been provided for by discussion with the
client, who spoke English and provided the documents in the first place.
Accordingly, it is respectfully submitted that it was unnecessary to incur the
expense of a German speaking lawyer to spend what amounted to nine days
reviewing documents, which could have been reviewed with the client directly.
If the involvement was to catalog the documents as part of the discovery
process, then that same time would have been incurred under Item 7, whether the
documents were in German or English.”
Referring to Janssen
at par.133, counsel for Cameco further contends that reasonableness and
necessity must be established and that it should be noted that Cameco, who did
not have the benefit of a German speaking client, needed the assistance of
German translation to review the documents provided by Nordbank and to that
effect, retained the services of a translator for three days in preparation for
cross-examination at a costs of $1,575.00. Lastly, it is submitted that the
costs of translation from German to English should be for documents that were
actually submitted to the Court and the opposite party for the priorities
hearing. Otherwise, it “would be akin to a party incurring the costs of an
expert report, but then not serving that expert report or using it at trial and
then seeking costs for obtaining it”.
[42]
In the second Affidavit sworn by Mr. McEwen, it
is stated that counsel for Cameco “was adamant” that all relevant documents of
Nordbank had to be produced. Said documents, the majority in German language,
once printed amounted to 16 volumes contained in 3-1/2” binders, which
contained a small amount of irrelevant material, duplicated documents and a
large amount of privileged documents. Mr. McEwen asserts that the costs of
translation should they have chosen to have the documents translated at $50.00
per page would have been more expensive “than retaining an individual
knowledgeable in the German language to explain the contents of each document
in order that a decision could be made as to whether that document should be
listed in the Bank’s Affidavit of Documents…”. Therefore, rather than hiring a
translator, counsel for Nordbank decided to retain the service of Ms.
Sievers-Redekop, a “knowledgeable translator” from a law firm with the
principal being a German speaking attorney. It is further stated that she
worked as a translator, not a lawyer, with Mr. McEwen’s junior for nine days to
review, translate and provide proper descriptions of documents in order to
prepare the Affidavit of Documents. After said Affidavit was provided to
counsel for Cameco, only 248 of the 421 documents listed were requested.
Considering that 59% of the producible documents were demanded, it would
explain the reasons why counsel for Cameco only needed the assistance of an
interpreter for three days to review the documents. In respect to the argument
regarding Mr. Schelp, Mr. McEwen states that Mr. Schelp resides and works in Hamburg, Germany and it was impractical to ask him to translate the documents.
[43]
In the Written Representations in rebuttal,
counsel for Cameco submits that:
“if Ms.
Sievers-Redekop was acting as a translator, and solely as a translator, then
the rates for translation should be at translator rates, not lawyer rates.
There is no need to have a lawyer simply read a document and to then have
another lawyer decide if the document is relevant, privileged etc. The
appropriate rate for translation services, as shown by the Able Translations
invoices is approximately $75.00 per hour or $525.00 per day, not $2,000.00 a
day as charged by Ms. Sievers-Redekop”.
Referring to the
Costs Order at paragraph 14, it is argued that the translation expenses incurred
were not for documents relied upon by Nordbank in this case as the documents
were translated in order to support Nordbank’s claim to enforce the mortgage
and sell the vessel. The expenses for translation would have been incurred in
any event and despite Cameco’s claim for priority to the sale funds.
[44]
In a letter signed and received on September 13,
2013, counsel for Nordbank specifies in response to Cameco’s arguments in
regard to the costs of translation of the Hartmann invoices in the amount of
$560.00 that it was indeed allowed as a Sheriff’s disbursement and paid out of
the Fund in Court. However, “as the Fund in Court was held to be payable in its
entirety to HSH Nordbank AG (the “Bank”), whose mortgage claim substantially
exceeded the Fund in Court, the translation costs of the Hartmann invoices
required for the assessment of the Sheriff’s costs due to the opposition of the
Cameco companies was borne entirely by the Bank and has not been reimbursed”.
In response to this letter, counsel for Cameco submits that Nordbank’s letter
is not accurate as the Order from the Court dated January 10, 2013 provided
that:
“After payment of the
marshall’s fees and disbursements, the balance remaining in trust from the
sale of the MCP ALTONA , including accumulated interest, shall be paid out to
the Caveator, HSH Nordbank AG.”
As submitted, it
would be incorrect to say that the “fund in Court was held to be payable in its
entirety to HSH Nordbank” as “the fund was comprised in two parts. First, there
was the amount for the payment of marshall’s fees and disbursements. Second,
there was the remaining amount which was to be paid to HSH Nordbank AG.” The
cost of translation of the above mentioned invoice was allowed as a Sheriff’s
disbursement and cannot be paid again as it had been paid from the Court fund.
[45]
With regard to the translation of documents used
in this matter, counsel for Cameco submits that the dispute opposing the
parties contained very few German language documents that needed to be
translated into English. However, while arguing the necessity for the claiming
party to establish reasonableness and necessity for this disbursement, counsel
for Cameco contends that not having the benefit of a German speaking client, he
retained the services of a translator for three days in preparation for the
cross-examinations. From the evidence, I further understand that the translated
documents would not have been provided to all parties or the Court. However,
the Court in the Costs Order at paragraph 20 states that Nordbank “shall also
be entitled to reasonable disbursements, including the reasonable cost of
translation from German to English…” It is apparent that the Court, with an in
depth knowledge of the file and after having heard the parties arguments considered
that translation services were necessary for counsel to prepare. However, I
agree with counsel for Cameco that translation services were not necessary for all documents as a
certain number of those documents would have been translated in the course of this
matter, well prior the priority issue discussions. Further, I find that it
would not have been reasonable for Nordbank’s client representative to look
after the translation of all or any of the documents. A
client representative might be expected to review documents with counsel in
order to prepare a list of documents but not to provide translation services.
[46]
As per the Costs Order, only reasonable disbursements for translation
services should be recoverable. Counsel for Nordbank
submitted invoices from Sievers-Redekop Law Corp for nine days of translation
service at $2,000.00 per day. Considering the arguments and evidence before me, I do not think that
employing a German-English speaking lawyer to translate documents was
reasonable in a party and party costs assessment. Although it might have
rendered the preparation of the List of Documents easier for counsel, I do not
judge that the costs of hiring a lawyer to translate documents should be borne
by the opposing party. In consideration of the above and Cameco’s evidence
regarding actual translation services costs and the fact that an indeterminate
portion of the documents submitted for translation might not specifically
correspond to the Priorities Motion or could have already been translated in
the course of other proceedings, the costs for the translation services from
German to English will be reduced to $3,675.00.
Travel
[47]
Attached to his Affidavit, Mr. McEwen presents
invoices to support his claim with respect to his travel to Saskatoon to attend
the cross-examinations of W. Summach and K. Guenther on November 6 and 7, 2012
for a total amount of $2,688.94 (Airfare: $742.25, Hotel: $1,288.84, Taxi:
$111.42, Rental car: $497.02 and Meals: $49.41). Mr. McEwen explains that the
cross-examinations, although set for three days, were completed in two days.
For that reason, he had tried to board an earlier flight back to Vancouver, to no avail. Upon the scheduled returned date on November 8, he was advised at
the Saskatoon Airport that his flight had been cancelled due to the closure of
the Calgary Airport. At that time, he had rented a car to drive to Regina and caught a flight to Edmonton, as he was informed that the next available direct
flight from Saskatoon to Vancouver was on November 11.
[48]
In response, Mr. Isaacs affirms in his Affidavit
that the cross-examinations of the deponents took place at the Cameco’s office
in Saskatoon on November 6 and 7, 2012. He further refers to the Costs Order
stating that the Court “directed its mind to travel expenses” in allowing at
paragraph 20 costs associated to the travel expenses incurred for the travel to
attend the hearing on the priorities motion in Ottawa only. Raising an exchange
of letters between parties that took place after the Costs Order, by which
Nordbank “sought to have the costs of travel for counsel from Vancouver to
Saskatoon and return provided for in the Costs Order”, it is further stated
that the Court on March 25, 2013, issued a Direction in respect of costs
directing that it was “not prepared to entertain a motion for reconsideration
of the Order dated 20 February 2013”. In Cameco’s Written Representations, it
is therefore argued that the amounts claimed are inappropriate as they had been
specifically raised with the Court, and are not keeping with the Costs Order
and the Court Directions. Arguing that the issue of the costs for the Saskatoon
trip had already been dealt with since the Court “chose not to award costs and
exercised its discretion by not awarding the costs of the Saskatoon trip or entertaining
a motion for reconsideration of the Costs Order”, counsel for Cameco contends
that travel costs are in the discretion of the Court and requires specific
direction (Carr v Canada [2009] F.C.J. 1575 and Abbott Laboratories v
Canada [2009] F.C.J. 494 (Abbott Laboratories).
[49]
In the second Affidavit sworn by Mr. McEwen, it
is asserted that counsel for Cameco insisted that the cross-examinations took
place in Saskatoon. It is further specified that the subject that was addressed
in the letter to the Court referred to fee Item 24, not the disbursements. The
Court did not deal with the disbursements. He further submits that:
“In the Direction
from Mr. Justice Harrington, at page 2, he said, “Considering that pursuant to
rule 414 of the Federal Courts Rules a party who is dissatisfied with an
assessment by an assessment officer may, by motion, request that the award be
reviewed by a judge.” I took that Direction to mean that the item 24 issue was
to be addressed before the Assessment Officer, and then taken up with a judge
on appeal, if necessary.”
[50]
In the Costs Order, the Court specified at
paragraph 20 that: “The Bank shall also be entitled to reasonable
disbursements, including the reasonable cost of translation from German to
English, and the costs of travel from Vancouver to Ottawa for the purposes of
arguing the priorities motion.” Following that Court Order, counsel for
Nordbank, as per letter of March 14, 2013, moved the Court to address Item 24
of Tariff B for counsel travel to Saskatoon from Vancouver and return. In the
Direction that followed, the Court considered Nordbank’s informal request for
reconsideration of the Costs Order to conclude that it was not prepared to
entertain a motion in reconsideration, making no specific direction regarding
the award of Item 24. As a consequence, I disallowed Nordbank’s claim for
travel to Saskatoon under Fee Item 24 (see paragraph 17). I take from the Costs
Order and Direction that followed that the Court “put his mind to travel
expenses” for both the travels to Ottawa and Saskatoon. In awarding costs and
travel disbursements on the Priorities Motion (Ottawa), while choosing not to
award any travel costs for the trip to Saskatoon and back, the Court was
clearly directing that expenses for the Priorities Motion were the only
disbursements awarded. In keeping with the Court’s decisions, the disbursements
claimed for the travel by Nordbank’s counsel to Saskatoon are therefore
disallowed. The travel disbursements to attend the priorities hearings (Ottawa) are not contested and will be allowed as claimed.
Electronic legal
researches (Quicklaw and Westlaw Carswell)
[51]
Mr. McEwen specifies in his Affidavit that the
services provided by Quicklaw and Westlaw Carswell encompass all the various
matters for which their services are sought and billed monthly to his law firm,
making it therefore impossible to obtain individual billing. The total charges
incurred by the law firm with regard to this client, for the period of time at
issue, are listed in an exhibit to the Affidavit: the “Cost Recap Summaries” as
generated by the law firm accounting department and showing the charges
incurred for the services.
[52]
In response, counsel for Cameco contends in
their Written Representations that the amount claimed for electronic legal
searches should be significantly reduced, to the order of $400.00, moreover
that computer search expenses should be considered an office overhead expense.
On this issue, it is further stated that:
“Prior to the advent
of computerized legal research, law firms were compelled to subscribe to
reporting services in order to stock their libraries with the law reports. The
provisioning of a lawyer’s office library is traditionally an office overhead
expense. With the use of computerized legal research, law firms no longer need
to subscribe to bound hard copy of books of law reports and have therefore
eliminated that expense from their office overhead. In turn, legal research
services can be tracked to a particular file and then billed to the client.
However, the savings in law firm office overhead is not accounted for when then
sought as party and party costs. If a lawyer is to consult the law reports then
the expense of pulling it up on Quicklaw is effectively the same as the expense
of having a subscription to the law reports, which would be office overhead.”
Referring to the
decisions in Abbott Laboratories and Janssen Inc. (previously
cited), counsel for Cameco contends that should this claim be allowed,
sufficient information should be provided that the research was relevant to the
matter before the Court.
[53]
In response, Mr. McEwen in his second Affidavit
attests that Cameco had raised four separate bases upon which they claimed
priority. These arguments were relatively complex and extensive legal research
needed to be done on all four grounds, as reflected in the charges claimed.
[54]
Counsel for Nordbank claims a total amount of
$1,615.15 (Quicklaw: $1006.89 and Westlaw Carswell: $608.26) for electronic
legal research. Considering the paucity of evidence submitted, it is not clear
whether the amount claimed is linked to searches done with regard to the
priorities issue. I generally have no issue allowing claims for on-line legal
searches. However, their necessity and relevance to the issue need to be
clearly justified. In the circumstances of the Motion on Priorities, although
it was relatively complex and heavily disputed, I find that I am not provided
with the necessary evidence to support a claim of $1,615.15. As in Janssen (previously
cited) at paragraph 152, I find that parties should not have to spend a
disproportionate sum of money to prove a disbursement. However, a minimum
amount of information should be provided as to why these searches were proper
and relevant to the matter at hand and I would add, why they could not have
been done using free on-line services. Furthermore, I was not provided with any
relevant information as to the manner in which Mr. McEwen’s law firm pay for
on-line research, yet I am aware that many law firms the size of Alexander
Holburn Beaudin & Lang, generally pay a monthly fee to take advantage of
systems like Quicklaw and Westlaw Carswell. Further, I agree with Mr. Isaacs’
representations that performing legal research using tools like Quicklaw has
now replaced the use of the law firm legal library. As stated in Truehope
Nutritional Support Ltd v Canada 2013 FC 1153 [Truehope], there
might still be circumstances when on-line legal research could be a justifiable
claim but the requirement to prove relevancy and necessity will continue to
exist. In the case at bar, I do not find that Nordbank provided the necessary
evidence to justify the amount claimed, nor the justification linking the
research done to its relevancy to the Priorities Motion. As in Truehope
(previously cited), I find it difficult to assess the relevance and necessity
of the claim in consideration of the paucity of evidence submitted. In
consideration of the fact that no clear justification has been provided to
substantiate the amount claimed and the fact that I regard legal computerized
research, unless otherwise proven, as office overhead expense as it compares to
the subscription services law firms library had to maintain in the past and
which were also considered office overhead, the disbursements claimed for
electronic legal research are not allowed.
Courier fees
(Federal Express)
[55]
Several invoices are attached to the McEwen
Affidavit with regards to the use of Federal Express Courier services.
Considering that the period covered by the Bill of Costs overlaps the period while
counsel were also dealing with the assessment of the Marshall’s costs, Mr.
McEwen indicates that he caused, in an effort to properly and fairly account
for all disbursements, for certain disbursements to be split 50/50 between the
two issues. The courier fees are one of these expenses.
[56]
In response, Cameco submits that these expenses
should be disallowed as many are duplicates and have already been sought in the
assessment of the Marshall’s costs. Attaching the Affidavit of Mr. McEwen sworn
July 8, 2013, as it was submitted in connection with the claim for Marshall’s costs, Mr. Isaacs attests in his Affidavit that the invoices of January 5,
February 17, May 7 and August 3, 2012 had already been claimed as part of the Marshall’s costs.
[57]
Mr. McEwen in his second Affidavit mentions that
the four invoices referred to were effectively in the Sheriff’s costs but that
these expenses were not duplicated because as mentioned earlier, they were
prorated 50% to the Sheriff’s costs and 50% to the priorities issue.
[58]
The courier invoices provide information on the
dates the services were utilized and to whom the packages were delivered. In
consideration of the size of the documents dealt with, the parties’ location as
well as their counsels’, documents have most likely been couriered in the
course of the dispute opposing Cameco and Nordbank. In the conduct of a matter
of this type, I accept that courier services were necessary and the Affidavit
of Mr. McEwen as evidence that the charges were not duplicated as they were
divided between the two issues dealt with by the parties in concomitance and
that courier charges had been incurred. The amounts requested are allowed as
claimed.
[59]
All other disbursements claimed in Nordbank’s
Bill of Costs are not contested, and are allowed as claimed.
[60]
The Bill of Costs presented by the Caveator HSH
Nordbank AG is assessed and allowed at $28,827.12.
“Johanne Parent”
Toronto, Ontario
December 19, 2013
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