Date:
20100825
Docket:
09-A-42
Citation:
2010 FCA 216
[ENGLISH TRANSLATION]
BETWEEN:
DRAGAGE VERREAULT INC.
Moving Party
and
CONSTRUCTION
McNALLY DU QUÉBEC INC.
and
THE CANADIAN SALT COMPANY LTD.
Respondents
ASSESSMENT OF COSTS – REASONS
JOHANNE PARENT, ASSESSMENT OFFICER
[1]
On
February 5, 2010, the Court dismissed with costs the motion for leave to appeal
under section 41 of the Canada Transportation Act. Directions were sent
to the parties on May 12, 2010, confirming that the assessment of the
bill of costs of respondent The Canadian Salt Company (CSC) would proceed
without personal appearance of the parties and outlining the time limits for
filing written submissions.
[2]
As
part of the services to be assessed, five units were claimed under section 19
following the filing of the respondent’s record from the CSC against the motion
for leave to appeal. Section 19 generally deals with services related to the
memorandum of facts and law in the context of an appeal under Rule 335 of the Federal
Courts Rules. Since an application for leave to appeal is not an appeal
under the Federal Courts Rules, I have taken the liberty to correct the
item claimed for Item 16(a), which relates to all services provided before the
hearing of the motion for leave to appeal, as this change in no way affects the
number of units in Column III.
[3]
In
support of this claim, the CSC submits that the costs claimed were “calculated
in the middle of the range of the units in Column III of Tariff B, which is
consistent with the case law and with Rule 407 of the Federal Courts Rules.”
In contrast, the moving party argues that the amount of the costs claimed is
exaggerated. Given the record and the rather uncomplicated debate required by
the argument on leave to appeal, it is submitted that the number of units
allowed should be four.
[4]
I
had the opportunity to read the respondent’s record from the CSC, which
contains Jean-Baptiste Dromer’s affidavit and a memorandum of fact and law. As
noted by the moving party, I am also of the opinion that this is not a very
complex matter. However, considering Rules 409 and 400(3) of the Federal
Courts Rules and upon reading the documents, I find that the workload
resulting from this case warrants the number of units claimed by the CSC.
[5]
In
its bill of costs, the CSC claims four units under Item 26 for assessment of
costs. In response, the moving party states that the minimum number of units
should apply.
[6]
Based
on my experience in dealing with assessment costs and the respondent’s
affidavit and representations in connection with this assessment, three units
shall be allowed.
[7]
In
support of the disbursements incurred by the CSC in this case, Johanne D’Astous’
affidavit notes that [translation] “the
disbursements paid by Lavery, de Billy in client record 408014-00333 and then
invoiced and paid by the respondent total $2,038.44, as shown in the Summary of
Costs in Lavery’s accounting system, Appendix A.”
[8]
For
its part, the moving party submits that the amounts claimed are exaggerated and
that they are not supported by any supporting documentation. With respect to
the number of photocopies claimed, the moving party argues that it is excessive
and that a review is necessary given that the CSC Record, the only document
produced by the respondent in this case, contains only 138 pages, “some of
which were unnecessary.” Referring to Pieters v. Canada 2005 FC 795, it
is submitted that the actual costs of the photocopies essential to the conduct
of the action must be taken into account.
[9]
In Diversified
Products Corp. v. Tye-Sil Corp. [1990] F.C.J. No. 1056, the Court stated that it is necessary
for a party claiming photocopy costs to provide sufficient proof to the
assessment officer that the copies claimed were essential to the debate. As
mentioned earlier, the CSC provided a summary of all costs incurred by the law
firm in this case in support of its claim. In these five pages of technical
information, there are repeated references to photocopies or copies with dates,
names of those individuals responsible, numbers of copies and amounts charged,
but nothing more. There is no indication of the documents that were photocopied
or reproduced or why they were necessary. Based on the aforementioned case law
and the number of copies required to serve and file the respondent’s record in
this case, costs of $380.00 are allowed for the printing of documents.
[10]
In
its bill of costs, the CSC claims facsimile ($753.25), cell phone ($24.96) and
deliveries and registered mail ($568.43) costs. In response, the moving party submits
that there is no documentation [translation]
“supporting the amounts claimed, such as invoices, including but not
limited to, the numerous bailiffs’ fees…”
[11]
Following
a review of the Court Record, part of the invoices for bailiff services used in
serving the respondent’s record were found attached to the back of the
respondent’s record. These invoices corroborate the information contained in
the summary table provided by the moving party and confirm that costs of $167.15
were paid to serve the respondent’s record to the other parties in this case on
January 15, 2010. These costs will therefore be allowed. However, I cannot
verify the costs of $358.49 claimed for extrajudicial services on January 14,
2010, nor can I find any information to explain them. Therefore, these costs
will not be allowed.
[12]
With
respect to facsimile costs, the vast majority ($613.75) was billed on
January 21, 2010, I can only conclude, as the moving party states in
its representations, that the CSC allegedly served its record a second time to
each of the parties by facsimile. Having no other justification for the amounts
claimed for photocopying and on the strength of the principle that the party
from whom the costs are collected should not be required to reimburse
unjustified costs that may result from disproportionate caution, the facsimile
costs will be refused.
[13]
The
telephone costs in the summary table attached to the affidavit supporting the
CSC’s bill of costs are justified by various long-distance calls. Given the
location of the parties’ representatives in Montréal and Québec City and the residence of affiant
Jean-Baptiste Dromer in this case, these costs are considered necessary for the
conduct of the action and will be allowed as claimed.
[14]
The
bill of costs for respondent CSC is allowed in the amount of $1,664.11. A
certificate of assessment will be issued in this amount.
“Johanne
Parent”
Toronto,
Ontario
August
25, 2010
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