Stanley M Smith and Donald Kilgour Campbell v. Her Majesty the Queen, [1985] 1 CTC 327, 85 DTC 5238

The Associate Chief Justice:—On February 14, 1985, at Ottawa, I filed written reasons for my disposition of appeals in these two actions from the decision of John E Clegg, Taxing Officer, given by him at Toronto, March 20, 1984. In the concluding paragraph, I invited counsel to make further representations as required and I heard them at London, Ontario, on April 10, 1985. At the conclusion of these further submissions, I was satisfied that my reasons did not deal sufficiently with two matters: costs upon pre-trial conference and expert witnesses at trial.

I do not need to elaborate on my reasons given earlier in which I indicated that disallowance of $650 in the Smith action should be restored. For the same reasons, the sum of $950 disallowed in the Campbell action should also be restored.

The subject of expert witnesses is somewhat more complex. My earlier reasons approve of the allowance made by the Taxing Officer for preparation for trial at $150 per hour for the witness Pearson and $85 per hour for the witness Strung. I did not go on, however, to carry that forward into the attendance of these two witnesses during the trial. I should underline here that the proper compensation for expert witnesses is invariably best dealt with by the trial judge and wherever possible, appeals from decisions such as these should be returned to the judge who presided over the trial. In this case, that was not possible and it may be that my disposition of this matter will be somewhat arbitrary. The relevant portion of the Taxing Officer’s decision is as follows:

Expert Fees:

That portion of the order of December 1, 1983 regarding the expert witnesses reads as follows:

1. The expert witnesses, Norman Pearson and Joseph Strung, are entitled (pursuant to ss 4(2) Tariff A) to reasonable payment for the services performed by them in preparing to give evidence, and in giving evidence. If the parties cannot agree on what is “reasonable payment”, then the taxing officer shall determine the amount.

The direction entitles the expert witness to reasonable payment for the services performed by them, rather than services performed by others in assisting them to prepare and to give evidence.

The account of Norman Pearson Planning Associates Limited dated March 1, 1983 (one week after the Reasons for Judgment were given from the Bench) was for $14,956.63 for the time spent by Dr Norman Pearson in preparing to give evidence and in giving evidence at $15.00 per hour plus the expenses incurred. The amount submitted on the Plaintiffs Bill of Costs is for $15,240.92, I was given no explanation for the $284.29 difference between that amount and the amount showing on the Norman Pearson Planning Associates Limited account dated March 1, 1983.

As at the commencement of trial, February 14, 1983, Dr Pearson’s fee plus disbursement amounted to $9,844.13. The remaining $5,112.50 is for the five days spent at trial by Dr Pearson at his hourly rate of of $150.00.

In the case Spur Oil v The Queen (Court file T-3596-76), The Hounourable Mr Justice Cattanach in his Reasons for Judgment dated June 8, 1982, considered the matter of taxable fees allowable to counsel and to expert witnesses at trial, and their respective responsibilities. At page 10 of those reasons, he states:

There should be a balance and, in my view, that balance should weigh in favour of counsel who have the paramount responsibility in the conduct of a trial.

With that in mind, Dr Pearson’s fees at trial are taxed at $100.00 per day for the five days of his attendance, and his total fees and disbursements are therefore taxed at $10,344.13.

The account submitted by Strung Real Estate Limited is broken down by the number of hours spent, in ten different time categories, by each of the four persons with the organization who worked on this case. As per the Court order of December 1, 1983, I concern myself only with the services performed by the expert witness Joseph Strung.

Mr Strung’s time in preparing for trial was charged at $85.00 per hour in the following manner:

Meeting with clients	14.0 hours
Inspect property	10.0 hours
Office research and organize work plan	47.25 hours
Meeting with collègues	7.0 hours
Draft report	40.0 hours
Prepare file for Court	29.5 hours

for a total of 147.30 hours or $12,495.00. There was no charge for Mr Strung’s time in the categories of Registry Office searches, finalizing report, or telephone discussion. The expenses charged for by Strung Real Estate Limited in this case total $5,247.53, of which I accredit one-quarter to Mr Strung, or $1,311.88. Mr Strung spent seven days at trial for which I allow $100.00 per day for the reasons given above. Mr Strung’s total fees and disbursements are therefore taxed at $14,506.88.

As the Taxing Officer set out in his report with a quote from Mr Justice Cattanach in Spur Oil Ltd v The Queen, [1983] 1 FC 244, the object is not full reimbursement on a solicitor and client basis but this is very close to what was done in respect to the preparation for trial, and for good reason. Real estate appraisers, as with most expert witnesses, do the bulk of their work prior to the trial, indeed prior to the filing of their report. One of the reasons that the allowances are as accepted by the Taxing Officer is because such a project involves the assistance of a support team of research and office staff. The experts, of course, must remain on through the trial and so the cost for them goes on, but I think the conditions differ, particularly in terms of support staff activity, and I therefore conclude that compensation during trial at the hourly rate allowed for preparation would be too generous. The per diem approach by the Taxing Officer was more suitable but his allowance of $100 a day is too low having in mind his acceptance of the hourly rate for preparation. It is also difficult for me to reconcile in any consistent manner the difference in allowances for preparation with a difference in the value of the contribution by these two experts during the course of the trial. Some differential is appropriate, but not the two-for-one ratio allowed in preparation. I would allow $400 per day for the witness Pearson at five days, or $2,000, and $300 per day for the witness Strung at seven days or $2,100.

Finally, counsel for the plaintiffs should recover for attendance upon taxation disbursements as claimed of $652.78 plus two days’ counsel fee at the Federal Court tariff.

Order accordingly.