Docket: A-512-09
A-513-09
Citation: 2012 FCA 15
A-512-09
BETWEEN:
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SIMPSON STRONG-TIE COMPANY, INC.
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Appellant
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and
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PEAK INNOVATIONS INC.
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Respondent
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A-513-09
BETWEEN:
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SIMPSON STRONG-TIE COMPANY, INC.
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Appellant
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and
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PEAK INNOVATIONS INC.
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Respondent
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ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment
Officer
[1]
The
Court dismissed with a single set of costs these appeals of the judgment of the
Federal Court concerning a decision of the Trade-Marks Opposition Board which
had addressed trade-mark applications for fastener brackets for attaching deck
boards. The Court had previously ordered that the two appeals be heard
together [the Consolidation Order]. I issued a timetable for written
disposition of the assessment of the Respondent’s bill of costs. The Appellant
conceded counsel fee item 18 ($130 for review and consent to the Appeal Book
contents) and binding ($81.32).
Counsel Fees
Item
19 (Memorandum of Fact and Law claimed at 6 units / range = 4-7 units;
hereafter, the numbers following the description of the fee item represent the
available Column III range of units in the Tariff)
[2]
The
Respondent argued that the Appellant’s characterization of this matter as a
“simple” appeal was incorrect by noting that the Court’s Reasons for Judgment
indicated that this case involved the relatively extensive issue of the
registrability of a colour trademark. As a memorandum of fact and law was filed
for each appeal, the single claim of 6 units at $130 per unit is modest.
[3]
The
Appellant argued that, as there was no evidence that this was not a simple
appeal and that the special Rule 400 factors should engage the discretionary
powers of the Assessment Officer, fee item 19 should be assessed at the low to
mid-range of Column III, i.e. no more than 4 units or $520.
Assessment
[4]
Paragraphs
15 and 16 of Madell v Canada, 2011 FCA 105 (AO) set
out my general approach for assessments of costs and for counsel fee items
respectively. Although there were several issues to address, the Court resolved
them in nine succinct paragraphs. I would not characterize these matters as
particularly complex. However, the Consolidation Order, although providing that
the appeal book in file A-512-09 was deemed to have been filed in file
A-513-09, also provided for a supplementary appeal book in A-513-09. I find
that 6 units ($780) are reasonable in these circumstances.
Item 21(a) (Reply
to the Appellant’s Motion to Consolidate claimed at 3 units / 2-3 units)
[5]
The
Respondent argued there is no evidence justifying the lower value of 2 units as
opposed to the higher value of 3 units. The Appellant argued that the lower
value of 2 units should be allowed for a motion filed only in court file
A-513-09.
Assessment
[6]
The
work required of the Respondent was straightforward. The preamble of the
Consolidation Order indicated opposition by the Respondent on the basis of
lapse of time limits for appeal books. I allow only 2 units ($260).
Item 22(a) (Appearance by Counsel at the
Hearing of the Appeals claimed at 3 units per hour for 2.5 hours / 2-3 units
per hour)
[7]
The
Respondent argued that the Tariff does not limit the compensation for each
counsel to the actual speaking time for each. Counsel was required to be
present throughout regardless of who was speaking. That the Respondent’s
submissions may have been more effective than those of the Appellant does not
justify assessing fee item 22(a) other than relative to the hearing’s actual
duration.
[8]
The
Appellant argued that the hearing was not long or difficult. Counsel for the
Appellant did most of the argument with opposing counsel called upon only
briefly. This item should be assessed at the low end, i.e. 2 units per hour
instead of the claimed 3 units per hour.
Assessment
[9]
Counsel
for the Respondent had to be present and vigilant throughout the hearing.
Paragraph 6 of Armstrong v Canada (Attorney
General),
210 FC 1189 (AO) outlines generally my approach in resolving fee item 13,
14 and 15 issues, and by extension fee item 22 issues. I find that
the hearing itself, following careful preparation by counsel for the
Respondent, was straightforward. I allow only 2 units per hour.
Item 25
(Services after Judgment claimed at 1 unit / 1 unit)
Assessment
[10]
I
reject the Appellant’s position, i.e. that nothing should be allowed given no
evidence of any service performed. The Respondent asserted in rebuttal
that this fee item normally includes receiving and reviewing the Court’s
decision and docketing and tracking appeal periods, I routinely allow fee item
25, as I will here, unless I think that responsible counsel would not have
reviewed the judgment and explained its implications to the client.
Item 26
(Assessment of Costs claimed at $600 / 2-6 units)
[11]
The
Respondent argued that this assessment required preparation of an affidavit and
a bill of costs, including a breakdown of disbursements, the collection of
records and the presentation of submissions. The claimed $600 is a
fraction of the actual costs, but is fair relative to the Tariff. The Appellant
argued that this assessment, having been directed to proceed in writing, was
simple and straightforward and therefore warrants only the minimum 2 units
($260).
Assessment
[12]
The
Respondent’s claimed $600 is not an even multiple of $130. The use of 4 and 5
units gives $520 and $650 respectively. I think that this was an average
assessment of costs warranting a mid-range value of 4 units.
Item 27 (Such other Services as May be
Allowed by the Assessment Officer: (a) preparation, filing and service of a
notice of appearance in each matter, (b) Submissions on Venue, claimed at 2 units
and 1 unit respectively / 1-3 units)
[13]
The
Respondent argued that there is nothing to warrant an allowance of less than
the claimed mid-range value of 2 units ($260) for the Notice of Appearance. The
Respondent argued that there is no rule prohibiting the assessment of costs for
correspondence (on venue) to the Court. Rather, it is the nature of the
work that engages an entitlement for the work. The minimum 1 unit ($130)
claimed here is modest and fair relative to the Tariff.
[14]
The
Appellant noted that, although a Notice of Appearance is a simple and
straightforward single-page document, the case law has permitted costs for it
which, if allowed here, should be restricted to the minimum 1 unit. The
Appellant argued that correspondence to the Court is not an assessable service.
Assessment
[15]
Paragraphs
23-24 of Shields Fuels Inc v More Marine Ltd, 2010 FC 228 (AO) indicate
my views on fee item 27 parameters. I have allowed fee item 27 for status
review work (International Taekwon-Do Federation v Choi, 2008 FC 1103).
I allow fee item 27 at 1 unit for the Notice of Appearance because, although it
would have required prior instructions from the client, its execution was
straightforward.
[16]
The
tariffs of some superior courts of record provide for assessable costs for
correspondence. The Exchequer Court of Canada Rules (amended to April 8,
1969) in item 20 of Tariff A provided for up to $20 for all “proper
correspondence pending suit.” Such provision for correspondence did not
make its way into the Federal Court of Canada, I am not inclined in
the circumstances of this matter to open that door and therefore I
disallow the claimed 1 unit.
Disbursements
Trial
Transcript ($287.30)
[17]
The
Respondent argued that review of the trial transcript by lead counsel was a
normal part of appeal case preparation, argument and ultimate success. The
Appellant argued that the trial transcript was strictly for the use of lead counsel
and is therefore not assessable.
Assessment
[18]
In
paragraph 157 of Halford v Seed Hawk Inc, 69 CPR (4th) 1, I
discussed a threshold for assessment of the costs of trial transcript, i.e.
whether they were essential for a successful result. As this expense
usually occurs after a trial ends and is associated with appeal case
preparation and appeal record filings, it is generally allowed in an
appellate level bill of costs: see para 17 of Culhane v ATP Aero
Training Products Inc, 2004 FC 1530 (AO). I allow the $287.30 claimed.
Photocopies
($0.25 per page for a total of $717)
[19]
The
Respondent discounted the Appellant’s position on the cost of photocopies, i.e.
no supporting evidence, by referring to the explanation and breakdown of the
in-house charges in the affidavit of disbursements and by arguing that the
claimed rate of $0.25 per page is very modest by today’s standard if compared,
for example, to the Registry’s charge of $0.45 per page.
[20]
The
Appellant asserted that there was no evidence to support this cost and referred
to the finding in paragraph 21 of Métis National Council of Women v
Canada (Attorney General), 2007 FC 961 (AO) that assessment officers,
faced with real and essential expenditures to advance litigation, but scant
proof, exercise conservative discretion with a sense of austerity to achieve
equitable assessed costs and preclude an absurd result of zero dollars. The
Appellant conceded that the Respondent did incur photocopy costs, a reasonable
allowance for which would be $200.
Assessment
[21]
Paragraph
65 of Abbott Laboratories v Canada (Minister of Health) (2008), 66 CPR
(4th) 301 (AO) [Abbott] summarizes my practice for
photocopies, including the need “to strike the appropriate balance between the
right of a successful litigant to be indemnified for its reasonably necessary
costs and the right of an unsuccessful litigant to be shielded from excessive
or unnecessary costs.” The proof here was less than absolute, but I am
satisfied that the amount of $717, which I allow, is reasonable in the
circumstances of this litigation.
Online
Computer Research ($121.45)
[22]
The
Respondent asserted that the online computer research addressed both the
interlocutory motion and the Memorandum of Fact and Law. The Appellant argued
that such amounts are law firm overhead to be absorbed in counsel fees charged
to the client and therefore should be disallowed.
Assessment
[23]
Paragraph
111 of Abbott above outlines my usual concerns with computer research, a
charge which I find fits the definition of a disbursement, i.e. a disinterested
third party service charged to the client and which is not a surviving or
ongoing benefit to a law firm or its subsequent clients. The evidence here
includes a typical law office computer program of disbursement listings by
category affording limited information on relevance and necessity. I allow a
reduced amount of $95.
Couriers
($130) and Long-Distance Telephone ($10.92)
[24]
The
Respondent asserted that the Appellant’s position on couriers appeared to
confuse the necessary service of documents on opposing counsel in Toronto with
the necessary filing of such documents in Vancouver (the
location of the Respondent’s solicitor). The use of couriers or process servers
for local filings is a normal out-of-pocket litigation disbursement. The
Appellant argued that there was no evidence to support this cost. The Appellant
conceded an amount of $86.66 to reflect appropriate costs for service in
another city, but to exclude the costs of local filings which should be
absorbed in overhead.
[25]
The
Respondent asserted that long-distance charges ($10.92) were necessary for this
matter and included discussions with opposing counsel. The Appellant argued
that nothing should be allowed as there were no supporting details in the
evidence.
Assessment
[26]
I
agree with the Respondent’s position on the use of couriers, but I concede the
Appellant’s difficulty in the face of no invoices. I allow $110. I accept the
Appellant’s explanation for the relevance of the calls, but note that given the
absence of details, I might have been inclined to disallow this item. However,
I allow $5.
[27]
I
accept the Respondent’s explanation, in response to the Appellant’s position
that HST charged at source should not be allowed as a separate item claimed at
$161.76, that the pre-tax amount of each disbursement is set out in the bill of
costs separate from its relevant tax reflected in the HST claim of
$161.76. I have adjusted the $161.76 down to $155.47 to reflect my reductions
of pre-tax amounts.
[28]
The
Respondent’s bill of costs, presented at $5,306.55, is assessed and allowed at
$4,363.09.
“Charles E. Stinson”
Vancouver,
BC
January
17, 2012
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