Date: 20090615
Docket: A-248-08
Citation: 2009 FCA 202
BETWEEN:
SIMPSON STRONG-TIE COMPANY,
INC.
Appellant
and
PEAK INNOVATIONS INC.
Respondent
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
Although
this is a reasonably straightforward assessment of costs, there is one minor
complication in that there are two awards of costs. One award is on this file
and the second is on file A-249-08. On both files the assessment was triggered
by a motion to strike the Notice of Appeal. By way of Order dated July 10,
2008, the Court granted the respondent’s motion to strike the Notice of Appeal with
costs to the respondent.
[2]
On
October 31, 2008 the respondent filed its Bill of Costs together with a letter
requesting an assessment of their Bill of Costs in writing on both files.
[3]
Upon
reviewing the files, Senior Assessment Officer Charles E. Stinson determined
that these assessments would be suitable for disposition by written submission.
By way of direction dated February 26, 2009, a timetable was established for
the filing of written submissions. The time limits set by the direction have
now passed and materials have been filed by both parties.
[4]
In
support of this Bill of Costs the respondent filed an Affidavit of Paul Smith
and Written Submissions. At paragraph 4 of the Smith affidavit it is submitted
that the amounts in the Bill of Costs were calculated using the middle of Column
III. At paragraph 5 of the Smith affidavit the affiant submits:
The disbursements listed in
Exhibit B were all incurred by the Respondent in relation to the motion and
were necessary for the conduct of the motion. Some of the disbursements in the
motion overlap with those for a separate motion in companion file no. A-249-08.
Because of this, the amount of disbursements for the A-249-08 motion is lower.
[5]
In
its Reply to the Bill of Costs, the appellant submits that the submissions to
quash the appeal were brief therefore Item 21 should be allowed at 2 units. The
appellant also submits that Item 26 should be allowed at 2 units as it is a
very simple assessment with no complicated issues. Concerning Item 27 the
appellant submits: “Tariff Item 27 does not apply as there was no “Judgment”
but rather an Order was rendered on a motion”.
[6]
Further,
concerning disbursements, the appellant submits: “Generally, as no disbursement
log or invoices were attached to verify any of the disbursements, they should
all be assessed at zero”. The appellant also submits that Quicklaw charges, facsimile
and courier should be assessed at zero as part of normal office overhead.
Specifically, concerning photocopies the appellant submits:
The affidavit is equivocal as to whether
$0.25/page was billed to the client or whether the photocopying was done
externally is which case the costs would be significantly lower. Due to the
equivocal evidence, the photocopy charges should be taxed at a lesser amount or
zero.
[7]
The
appellant’s final argument relates to the costs of the assessment. At paragraph
12 of its submission the appellant submits:
As the Respondent is assured
of the same degree of success on assessment by its very nature, the determining
issue as to the award of costs is the degree to which the Respondent was
successful in assessing its costs. If the amounts requested by the Respondent
were not generally achieved, costs should be fixed and awarded to the Appellant
and deducted from the total assessed amount plus PST and GST.
[8]
By
way of rebuttal to the appellants final point the respondent submits:
With respect to the Appellant’s request
that costs of this assessment should be “…fixed and awarded to the Appellant
and deducted from the total assessed…”, there is no basis in the Federal
Courts Rules for such an approach. An assessment officer does not have the
authority to award costs.
Assessment
[9]
I
am faced with two assessments on two separate files each of which contain an
order awarding costs to the respondent. As the two motions and the two orders
emanating from the motions are for all intents and purposes identical, I am
faced with the costs of a motion which overlap with those for a separate motion
in companion file A-249-08. Under these circumstances, in assessing costs I
must be cognisant of the award but at the same time be mindful of not allowing
costs in a manner which would result in a doubling of costs.
[10]
As
supported by 9038-3746 Quebec Inc. v. Microsoft Corporation, 2007 FCA
76, the respondent is correct that, as a general rule, motions are heard in
writing in the Court of Appeal. As this is the practice, the fact that the
present motion was heard in writing, in and of itself, should not reduce the
costs allowed.
[11]
On
the other hand, I am in agreement with the appellant that the materials filed
in support of the motion were brief; therefore, I will award Item 21 at 2 units.
Similarly, as mentioned earlier, this assessment was not complicated; therefore,
I will allow Item 26 at 2 units.
[12]
The
respondent has claimed 1 unit under Item 27, services after judgment not
otherwise specified, however, under Tariff B, Item 25 relates to services after
judgment. As the respondent’s reference to Item 27 appears to be in error, I
will correct the Bill of Costs to reflect the correct Item number. The
appellant submits that Item 25 should not be allowed as there was no judgment.
The respondent submits: “the motion resulted in the striking of the Appellant’s
Notice of Appeal, effectively ending the appeal”. Given that the result of the
Court’s decision was the ending of the appeal, I am of the opinion that this is
a situation where costs may be allowed for services after judgement. Therefore,
1 unit is allowed for Item 25.
[13]
The
appellant submits that disbursements should be assessed at zero. While I
recognize that the evidence presented was sparse, the disbursements claimed
were not unreasonable. I will apply the decision of the Assessment Officer in Métis
National Council of Women v. The Attorney General of Canada [2007] FC 961
at paragraph 21:
The less that evidence is
available, the more that the assessing party is bound up in the assessment
officer’s discretion, the exercise of which should be conservative, with a view
to the sense of austerity which should pervade costs, to preclude prejudice to
the payer of costs. However, real expenditures are needed to advance litigation:
a result of zero dollars at assessment would be absurd.
[14]
Although
some disbursements may be seen as normal office overhead, I find that Quicklaw,
facsimile and courier costs do not fall into this category as they may be
attributed to a specific file. In its rebuttal the respondent submits that all
of the photocopies, courier and facsimile charges were necessary for the
motion. Having reviewed the file and the materials filed in support of the
motion to strike the Notice of Appeal, and noting that counsel for the
respondent practices in British Columbia while counsel for the appellant
practices in Ontario, thus increasing facsimile and courier costs, I find the
disbursements for Quicklaw, photocopies, facsimile and courier to be reasonable
and necessary. Therefore, the respondent’s disbursements are allowed as
claimed.
[15]
I
cannot agree with the appellant’s submission that, depending on the success of
the respondent, the costs of the assessment should be fixed and awarded to the appellant
and deducted from the total assessed amount. As submitted by the
respondent, Assessment Officers lack the jurisdiction to award costs. In Balisky
v. Canada [2004] F.C.J. No.536 at paragraph 6 the assessment officer
states:
Rule
400(1), which vests full discretionary power in the Court over awards of costs,
means that orders and judgments must contain visible
directions that costs have been awarded. Given the Federal
Courts Act ss.3 and 5(1) defining the Court and Rule 2 of
the Federal Courts Rules, 1998 defining assessment officer, the absence
of that exercise of prior discretion by the
Court leaves me without jurisdiction under Rule 405
to assess costs.
[16]
As
Assessment Officers are not members of the Court, as defined by the Federal
Courts Act, I am unable to award costs for the assessment to the appellant.
[17]
Finally,
pursuant to Division 6 of the Social Services Tax Act, [RSBC 1996]
Chapter 431, in the province of British Columbia, legal services are subject
to PST at a rate of 7%. As respondent’s counsel is from Vancouver, and the
respondent has requested both PST and GST on legal services, both are allowed.
[18]
Further
to these reasons, the Bill of Costs presented at $1,173.04 is allowed for a
total amount of $769.84. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
June 15, 2009
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