Forestex Management Corp. v. Lloyd's of London, 2005 FC 263

Date: 20050217

Docket: T-1287-02

Citation: 2005 FC 263

BETWEEN:

                                          FORESTEX MANAGEMENT CORP. and

                                           J.M.C. FOREST MAINTENANCE LTD.

                                                                                                                                             Plaintiffs

                                                                           and

                   MR. DORNOCH ON BEHALF OF UNDERWRITERS AT LLOYD'S,

                                  MEMBERS OF LLOYD'S, LONDON, ENGLAND,

                         CANADIAN NORTHERN SHIELD INSURANCE COMPANY

                              and COMMERCIAL UNION ASSURANCE COMPANY

                                                                                                                                         Defendants

                                   REASONS FOR AN ORDER ASSESSING COSTS

                                                       PURSUANT TO RULE 405

HARGRAVE P.

[1]                This assessment of costs, pursuant to an Order of 30 December 2004, took place with counsel in attendance, on 16 February 2005.

[2]                Counsel for the Plaintiffs raised the issue of whether an action, abandoned at a relatively early stage, might sound in costs which could be taxed, there being no final determination. In a sense that is so, for by the Order of 30 December 2004 and by reason of subsequent events, the action was deemed to have abandoned: the Order, which provides for taxation of costs, did not dismiss the action because there was a parallel action in the B.C. Supreme Court, with the Plaintiffs having the option of proceeding with one or the other. However, the issue of an abandoned action may be dealt with, by analogy, to Rules 402 and 411. The former deals, among other matters, with discontinuance of actions and abandonment of motions. Rule 411 deals with abandoned motions. In both instances costs may be assessed. There being no provision as to the abandonment of an action, this is a situation in which Rule 4, the present gap rule, is applicable and all the more so where a plaintiff has actions going in separate courts and has no intention of carrying them both to a conclusion.

[3]                Turning now to the draft bill of costs produced by the Defendants, the Defendants claimed a total of 41 units at $110 per unit. Counsel for the Plaintiffs submitted that 21 units was a better measure: in order to reach this conclusion counsel submitted that taxation ought to be under Column II, rather than Column III, the scale used by the Defendants. While Column II does reflect, within its range, an appropriate measure for some steps taken in the action, the range within Column II does not take into account a full measure of reasonable costs for two motions and particularly the complexity of the motion to strike out the statement of claim and that one of the motions was spread over two days, so that counsel for the Plaintiffs might obtain further instructions. Counsel did agree that a lump sum approach might be appropriate. I therefore awarded 31 units which, together with GST and PST amount to $3,887.40.

[4]                As to photocopying, counsel for the Plaintiff pointed out that it is possible to obtain photocopying at about $0.10 per page: that may be so with do-it-yourself machines at convenience stores and for high volume orders for outside photocopying. However I accept that law firms copying pages of material from time to time, in a high overhead location, cannot meet that figure. Moreover, $0.25 per page is not only the rate charged by the Federal Court for photocopying file material, but also seems to be a standard rate on Federal Court taxation. I am not prepared to reduce that rate.

[5]                Facsimile costs at $0.35 per page, which is based on an estimate of three pages per fax, is arguably high at $77.70. That figure is therefore reduced to $50. The subtotal for disbursements is thus $562.88, of which $300 is not taxable. Applying GST at 7% on the $562.88 figure gives a total disbursement figure of $902.28.

[6]                To summarize, I would allow 31 units under Tariff B, Column III, being $3,410, together with tax of $477.40, a total of $3,887.40, and total disbursement of $902.28. Adding disbursements and Tariff B costs the total assessment is thus $4,789.68, payable by the Plaintiff to counsel for the Defendants, in trust.

(Sgd.) "John A. Hargrave"

    Prothonotary

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1287-02

STYLE OF CAUSE:                          FORESTEX MANAGEMENT CORP. ET AL v. MR. DORNOCH ON BEHALF OF UNDERWRITERS AT LLOYD'S MEMBERS OF LLOYD'S, LONDON, ENGLAND ET AL         

PLACE OF HEARING:                    VANCOUVER, B.C.,

DATE OF HEARING:                      FEBRUARY 16, 2005

REASONS FOR ORDER ASSESSING COSTS : HARGRAVE, P.

DATED:                                             FEBRUARY 17, 2005

APPEARANCES:

Mr. Darren Williams (Agent)                                                      FOR PLAINTIFF / APPLICANT

Ms. Shelley Chapelski                                                               FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Spears and Company

West Vancouver, B.C.,                                                             FOR PLAINTIFF/APPLICANT

Bromley Chapelski

Vancouver, B.C.,                                                                      FOR DEFENDANT/ RESPONDENT