Date: 20080919
Docket: A-207-07
Citation: 2008 FCA 280
BETWEEN:
B-FILER INC., B-FILER INC.
doing business as
GPAY GUARANTEED PAYMENT and NPAY INC.
Appellants
and
THE BANK OF NOVA SCOTIA
Respondent
ASSESSMENT OF
COSTS - REASONS
Johanne Parent
Assessment Officer
[1]
The
respondent was fully successful in responding to a Section 75 application under
the Competition Act and in seeking orders that lead to the final
judgment of the Court dismissing the appeal with costs on February 13, 2008. A
timetable for written disposition of the assessment of the respondent’s bill of
costs was issued on July 15, 2008 and sent by facsimile and mail to all
representing counsel.
[2]
Counsel for the respondent filed supporting affidavit and written
submissions within the prescribed timeframe. Submissions in reply on
behalf of the appellants were not received by the Registry of the Court in the
allocated timeframe, nor was any request to extend the time to file said
submissions received. As stated by my colleague in Dossa v. Canada (A-657-04):
The Federal Courts
Rules do not contemplate a litigant benefiting by having an assessment
officer step away from a neutral position to act as the litigant's advocate in
challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful
items, i.e. those outside the authority of the judgment and the tariff. I
examined each item claimed in the bill of costs and the supporting materials
within those parameters.
In accordance with the above referenced
comments, despite the lack of challenge by the opposing party, I am prepared to
determine the weight that should be given to all factors submitted in the respondent’s
bill of costs.
[3]
In
considering the respondent’s success and the importance and complexity of the
issues, the assessable services claimed under Tariff B of the Federal Courts
Rules for the preparation of the responding memorandum of fact and law
(Item 19) and for counsel fee for preparation of motion for security for costs
(Item 21) will be assessed as claimed.
[4]
With
regard to the claim for counsel fee for the preparation of a motion for
confidentiality order, the Court’s order of November 22, 2007 is silent as to
costs. In Janssen-Ortho Inc. and Daiichi Pharmaceutical Co., Ltd v.
Novopharm Limited, 2006 FC 1333, the Court determined that, “any pre-trial
order that is silent as to costs means that no costs have been awarded to any
party”. Consequently, item 21 for this motion will not be allowed.
[5]
The
number of units claimed for the preparation of the bill of costs will be
allowed as claimed, but under Item 26 of the Tariff, not 27. The respondent
claims the maximum number of units under Item 27 for research in preparation
for appeal (3 units) and for consulting with expert Frank Mathewson in
preparation for appeal (3 units). Although amounts claimed under Item 27 may be
allowed for any services not covered by items 1 to 26 of the Tariff, in my view
the above mentioned fees pertain to the preparation of the respondent’s
memorandum of fact and law, which has already been claimed under Item 19. These
claims will therefore not be allowed.
DISBURSEMENTS
[6]
I examined
each disbursement claimed along with the supporting material and the Court
file. The
disbursements for courier charges ($46.85), facsimile charges ($3.45), computer
searches ($117.78) and process services ($439.50), as claimed in the
respondent’s bill of costs, are all charges deemed necessary to the conduct of
this matter. The amounts are reasonable and are therefore, allowed.
[7]
Further
to my review of the respondent’s documents in support of the bill of costs,
there is no evidence in support of the amount claimed for photocopies and print
room binding charges. I am however, allowing these disbursements at $640 and
$100 respectively as in my view they were necessary expenses.
[8]
The
respondent claims in its bill of costs $4,197.56 for expert fees. This claim is
not supported by any evidence or any arguments as to the usefulness or
necessity of the expert’s opinion in the appeal process. I have had the opportunity
to read the respondent’s memorandum of fact and law and the material in support
of the motion for security for costs, and cannot find any reference to experts
but for quotation of evidence before the Competition Tribunal. Experts have a
valid role in giving advice on technical matters beyond counsel’s expertise but
such service must meet the threshold of necessity and reasonableness. While it
may well be that it was reasonable for the respondent to obtain expert advice
before the Competition Tribunal, there is no evidence establishing that the
disbursements claimed were necessary and specifically related to the case at
bar. Consequently, I disallow this disbursement in its entirety.
[9]
The
bill of costs is allowed at $ 2,907.58 plus GST ($145.38) for a total amount of
$3,052.96.
“Johanne Parent”
Toronto, Ontario
September 19,
2008
Email this Content