[1] The trial of the matter, addressing allegations of patent infringement relative to an invention described as a "Seed/Fertilizer Placement System for Minimum Tillage Application", occurred over a period of four years. The Court dismissed the main action with costs and dismissed the counterclaim, but did not mention costs. Subsequently, the Court issued directions concerning the assessment of the Defendants' costs and, as well, denied costs to the Plaintiff relative to defence of the counterclaim. However, the Court confirmed that the Plaintiffs could assess their costs awarded in any event of the cause further to interlocutory proceedings. The Court directed that these assessments of costs could proceed notwithstanding outstanding appeals against the trial judgment.
[2] The Defendants, Seed Hawk Inc., Pat Beaujot, Norbert Beaujot and Brian Kent (hereafter the "Seed Hawk Defendants"), presented their bill of costs first for assessment. They noted that all parties are located in Saskatchewan, that the Seed Hawk Defendants are represented by a law firm with Calgary and Ottawa counsel, that the Defendant Simplot Canada Limited (hereafter the "Simplot Defendant") is represented by a Brandon, Manitoba law firm and that the Plaintiffs are represented by a Winnipeg law firm, but with joint representation at this time by a law firm with Toronto counsel for the purpose of an outstanding appeal from the trial judgment. The Seed Hawk Defendants further noted that their counsel, as well as the Simplot Defendant's counsel, had attended four separate times in Winnipeg for the seven-week trial and asserted that, counsel for the Simplot Defendant agreeing, the assessment of all of the Defendants' bills of costs should occur in Calgary, being the next closest venue outside of Saskatchewan and apart from Winnipeg.
[3] It became apparent from correspondence on the court file that a choice of venue and certain other preliminary matters concerning the exchange of materials and cross-examinations of affiants were contentious issues. I convened a telephone conference with counsel on March 4, 2005, at which time I issued a timetable for cross-examinations, service and filings (including those addressing the outstanding issue of venue). These reasons address the Plaintiffs' preliminary objection concerning venue, ie. urging Winnipeg and not Calgary.
The Plaintiffs' Position on Venue
[4] The Plaintiffs asserted their intention to assess their costs as a function of interlocutory awards in any event of the cause, coincident with those of the Defendants. Winnipeg was the most convenient trial venue as a function of the residency of the parties and their counsel. The trial, originally scheduled for three weeks, had to be adjourned through no fault of the Plaintiffs because of the illness of the Seed Hawk Defendants' former counsel. The latter engaged new counsel and there were several subsequent attendances in Winnipeg. The trial judge rejected several requests by the Seed Hawk Defendants to reconvene the trial in Calgary or Ottawa.
[5] The Plaintiffs asserted that their materials correct the distances estimated below by the Defendants. In fact, the Seed Hawk Defendants are located approximately 600 and 250 miles from Calgary and Winnipeg respectively and the Simplot Defendant (and its counsel) are approximately 695 and 133 miles from Calgary and Winnipeg respectively. This undermines the Defendants' assertions that the costs and inconvenience associated with Calgary and Winnipeg venues respectively are roughly equivalent. The Simplot Defendant's acknowledgment that air travel to Calgary would be via Winnipeg confirms Winnipeg as the most convenient venue. The Plaintiffs conceded the accuracy below of the Defendants' distance figures for them and noted that the Plaintiffs, of all the parties, are the furthest from Winnipeg, although the distance to Calgary is still much greater.
[6] The Plaintiffs argued that Rule 3 requires that the Federal Courts Rules be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits. Further to Glaxo Group Ltd. v. Novopharm Ltd., [1996] F.C.J. No. 1423 (F.C.T.D.), choice of venue should reflect a fair balance between the parties, but still must ensure the most expeditious, least expensive and least disruptive manner of assessment of costs possible. The Winnipeg venue meets this threshold for all of the parties and their counsel, except counsel for the Seed Hawk Defendants. The trial judge recognized this in directing that all interlocutory and post-judgment hearings occur in Winnipeg, except for a motion heard in Regina. By contrast, a Calgary venue would result in significantly higher travel costs for the parties.
[7] The Plaintiffs argued the Seed Hawk Defendants' success at trial does not necessarily entitle them to choose the venue for assessment of costs solely as a function of their convenience. That is, the Plaintiffs received several interlocutory awards of costs in any event of the cause to be assessed coincident with the Defendants' costs, ie. such as costs thrown away associated with the granting of leave to the Defendants to amend pleadings and adduce additional materials. Given that the Plaintiffs will seek set-off of these considerable costs and also their reasonable costs associated with assessment of these interlocutory awards of costs, choice of venue should not simply be a function of success at trial. The Plaintiffs conceded certain efficiencies in a single hearing of the bills of costs of all Defendants, but argued that they should not have to bear the Simplot Defendant's extra costs associated with a Calgary venue.
The Seed Hawk Defendants' Position on Venue
[8] The Seed Hawk Defendants argued that Calgary, and not Winnipeg, should be the venue for a single hearing of the assessments of all bills of costs by all parties, to include consideration of Rule 408(2) set-off. The Seed Hawk Defendants reiterated their comments above concerning the locations of parties and counsel relative to Calgary and Winnipeg and concerning the several attendances at Winnipeg for the trial, but noted that other attendances in Winnipeg for motions had also occurred. They argued that a Regina venue would require travel costs for all parties and noted that the Simplot Defendant supports a Calgary venue for assessment of its costs with particular regard to the efficiencies of a single hearing precluding overlapping issues and submissions and the risk of differing results for the respective bills of costs.
[9] The Seed Hawk Defendants argued further to the Federal Courts Act, s. 15(3) and Rule 28 of the Federal Courts Rules that the trial venue of Winnipeg does not preclude Calgary as the assessment venue, ie. hearings can be conducted partly in one place and partly in another. Further to Fort Alexander Indian Band v. Canada, [1987] F.C.J. No. 910 (F.C.T.D.), the city in which an action is instituted is not a relevant consideration in the choice of venue. Further to Fort Alexander Indian Band, supra, Glaxo Group Ltd., supra and Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd., [1992] F.C.J. No. 1034 (F.C.T.D.), motions, and by analogy assessments, should be made returnable at the most convenient place. The Seed Hawk Defendants are located approximately 493 and 375 miles respectively from the court's offices in Calgary and Winnipeg. The Plaintiffs are located approximately 512 and 312 miles respectively from said Calgary and Winnipeg offices. This means that said parties will incur travel costs regardless of which venue is chosen.
[10] The Seed Hawk Defendants argued further to Glaxo Group Ltd., supra and Society of Composers, Authors and Music Publishers of Canada, supra that parties and their counsel must share inconveniences associated with motion venues. Here, the several hearings at a Winnipeg venue have already generated travel costs for attendances by the Seed Hawk Defendants' Calgary and Ottawa counsel, ie. such as for the motion before the trial judge for directions on costs resulting in an order including a lump sum of $7,500.00 plus disbursements for the associated attendance, which has not yet been paid. It is only fair and equitable that the Plaintiffs now incur travel costs for attendance by their counsel in Calgary. A Winnipeg venue creates the possibility that the Seed Hawk Defendants would require a separate and subsequent assessment of the associated travel costs. Accordingly, as the successful parties, they should be able to choose a venue to preclude and minimize further costs given that they have already incurred substantial costs, which the Plaintiffs have not yet paid, for several attendances to date in Winnipeg, the home base for the Plaintiffs' counsel who have not yet been required to travel.
[11] In rebuttal, the Seed Hawk Defendants asserted that they requested a venue other than Winnipeg only once to date and argued that the trial judge clearly did not reject said request, but simply indicated that the Court was not disposed to entertain such a request in the absence of an issue concerning the improved availability of counsel, and the consent of the parties. Therefore, a Calgary venue is not precluded. The Seed Hawk Defendants reiterated their submissions concerning shared inconveniences of venue and argued that the Simplot Defendant's agreement to a Calgary venue acknowledges that duty, notwithstanding that the costs of attendance in either Calgary or Winnipeg would be roughly equivalent, ie. the WestJet website advance ticket prices support this assertion.
[12] The Seed Hawk Defendants argued that non-airfare travel costs are of particular relevance in the determination of venue. Specifically, the successful Defendants at trial have borne, unlike the Plaintiffs, all such costs to date, ie. meals, taxis, hotels, office rental space, additional staff and the inconvenience of several out of town attendances of varying durations, and therefore it is only fair and equitable that the Plaintiffs share such inconveniences by assuming the burden of travel costs in this instance. This one week attendance in Calgary would still not balance the travel costs and inconvenience borne by the Seed Hawk Defendants to date. The choice of venue should not operate unfairly to impede the Seed Hawk Defendants, whose success at trial should have some weight in the choice of venue, in the recovery of their rightful costs.
The Simplot Defendant's Position on Venue
[13] The Simplot Defendant generally reiterated the Seed Hawk Defendants' submissions on the relative location of the parties and selection of venue, noted that it and its counsel are based in southwest Manitoba and requested a Calgary venue. Either Calgary or Winnipeg as a venue would require its counsel to incur hotel and living expenses. The additional cost of its counsel's time and flight to and from Calgary would be of minor concern and any additional costs, which should be borne by the Plaintiffs, would approximate what the Plaintiffs would be required to pay for the attendance in Winnipeg of the Seed Hawk Defendants' counsel. The Simplot Defendant also echoed the submissions of the Seed Hawk Defendants' concerning the travel costs borne to date by the Defendants, as opposed to the Plaintiffs, and the fact that the Plaintiffs should now be required to assume some of that burden in the interest of fair and equitable sharing of the inconvenience of venue.
Assessment of Venue
[14] My feeling at the teleconference was that some counsel had assumed that the parties themselves must be present at an assessment of costs and that viva voce evidence is ordinarily led. I made it clear that I considered viva voce evidence to be the exception at assessments of costs and that I expected these matters, estimated to last 5-6 days, to proceed on affidavit evidence. Although Tariff B1(4) does provide for a solicitor appearing on an assessment of costs to establish the sufficiency of circumstances for indemnification of disbursement amounts, it creates the awkward situation of counsel both giving evidence and argument. That scenario interferes, in my opinion, with the rights of, for example, litigants liable for costs to properly cross-examine on adverse evidence. I view Tariff B1(4) in practice as a valuable resource permitting counsel at an assessment to explain and clarify ad hoc given items, in effect permitting recovery at a late stage in the litigation from oversights in the affidavit evidence (which should address counsel fees as well) so as to ensure appropriate access by successful litigants to indemnification for their real and necessary costs of lawsuits. I view the operation of Rule 408(1) as my authority to generally favour the use of affidavit evidence as the standard of practice in assessments of costs. Accordingly, I think that experienced counsel as here on all fronts, equipped with instructions from their clients, are quite capable of addressing these assessments of costs out of the presence of said clients. Modern communications are such that, for this litigation at least, ad hoc consultations with a client seen as necessary for given items as the assessment hearing unfolds will not impair that party's position. There is nothing in the Act or Rules requiring a litigant to engage and instruct counsel located in a venue convenient for another litigant adverse in interest, but the case law indicates that choice of venue should not occur in a vacuum.
[15] The case law appears to favour the Seed Hawk Defendants in the circumstances here of the events to date, not in that the first party to present a bill of costs secures the right to choose venue, but as a function of the principle of shared inconvenience, including costs, of venue. However, having factored out the locations of the parties themselves as an appreciable factor, and apart from the circumstances of airfare for counsel for the Simplot Defendant, the core question is which of the Plaintiffs' and Seed Hawk Defendants' counsel should be required to incur travel costs and time, presumably followed by an effort under Rule 408(3) to recover said costs? I note that the parties' submissions focused on travel costs and not on possible extra costs payable for counsel's time in transit.
[16] There will be several bills of costs in issue, accounting for all parties to this litigation. The parties could have insisted on separate hearings, each resulting in Rule 408(3) requests for the costs of assessment, which I agree in these circumstances would have been inefficient and in the case of the Plaintiffs might have impaired their bid for set-off. Either venue would require the Simplot Defendant to incur travel costs such as hotels, mileage, living expenses etc. for its counsel, but only the Calgary venue introduces airfare as a potentially assessable cost. In the absence of the Seed Hawk Defendants as a factor, it would be very difficult for the Simplot Defendant to justify a Calgary venue in these circumstances. I understand its motives in seeking assessment of its costs coincident with that of the costs of the Seed Hawk Defendants. Even in a single hearing effectively integrating to some extent several assessments of costs, the Plaintiffs may argue, as a function of Rule 408(3), for its costs of assessment, including travel costs. In this latter vein, the parties may argue some basis for apportionment considerations relative to the various travel costs, albeit opinions may differ as to degree, given that a single hearing will likely have benefits for all involved.
[17] The hearing of the assessments of the various bills of costs in this matter will commence on May 2, 2005, in the Calgary office of the Court, with an estimated duration of 5-6 days.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2406-93
STYLE OF CAUSE: JAMES W. HALFORD et al.
- and -
SEED HAWK INC. et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE
OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: April 12, 2005
SOLICITORS OF RECORD:
Fillmore & Riley LLP for Plaintiffs
Winnipeg, MB
Gowling LaFleur Henderson LLP for Defendants
Calgary, AB Seed Hawk Inc. et al.
Meighen, Haddad & Co. for Defendant
Brandon, MB Simplot Canada Limited
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