Trawlercat Marine Inc. v. Ameriyacht, 2004 FC 1529

Date: 20041028

Docket: T-1508-02

Citation: 2004 FC 1529

BETWEEN:

                                                   TRAWLERCAT MARINE INC.

                                                      and GRAHAM N. PFISTER

                                                                                                                                             Plaintiffs

                                                                         - and -

                                                             GENE FOLDEN and

                                    AMERIYACHT, A METRO GROUP COMPANY

                                                                                                                                         Defendants

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                This action, for various heads of relief relative to power catamaran designs, was discontinued. The Defendant Ameriyacht, a Metro Group Company (hereafter the "Defendant"), presented its bill of costs for assessment further to Rule 402.

[2]                The Plaintiff, Graham N. Pfister (hereafter the "Plaintiff") filed a Notice of Intention to Act in Person subsequent to the Appointment for Assessment of Costs taken out by the Defendant. To ensure that the Plaintiff understood the process about to unfold, I led the following comments at the beginning of the hearing (which proceeded by teleconference):

·            Further to the Federal Courts Act, ss. 4 and 5.1 defining the Court and Rule 2 of the Federal Court Rules, 1998 defining assessment officer, I am not the "Court" within the meaning of Rules 400(1) and 402 and I therefore have no jurisdiction to make the "otherwise" order contemplated by the latter Rule, ie. to vary or vacate the Defendant's entitlement to costs.

·            My jurisdiction flows from Rule 405 under which I can determine entitlement and amount of individual items of costs in turn all so as to translate an award of costs into a specific dollar amount.

[3]                The Plaintiff clarified, with the Defendant's counsel, the meaning and purpose of item 26 (assessment of costs) fees and agency charges of $49.50. The Plaintiff objected to facsimiles and couriers claimed at $489.00 and $58.70 respectively. He argued that there had been sufficient time to have instead mailed most of the materials. As an alternative, the internet could have been used.

[4]                The Defendant argued that the modern world requires prompt process via technology such as facsimile transmissions, claimed here at $1.00 per page. The addressees for materials sent would have included the client. The expense to research the minute details of disbursements would exceed the amount of the disbursements themselves. Couriers are used to transport materials between law firms.

Assessment

[5]                The use of facsimiles and couriers is common in this age of case managed litigation, but they cannot become part of indemnifiable litigation costs if excessive. I will apply discretion to the disbursements consistent with my approach in Grace M. Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and with the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", in sorting out a reasonable result for costs. The proof here is vague in some respects. The less that evidence is available, the more that the assessing party is bound up in the assessment officer's discretion, the exercise of which should be conservative with a view to a sense of austerity to preclude prejudice relative to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. I allow facsimiles and couriers at the reduced amounts of $350.00 and $45.00 respectively. The Defendant's bill of costs, presented at $3,080.64, is assessed and allowed at $2,917.25.

(Sgd.) "Charles E. Stinson"

     Assessment Officer

Vancouver, BC

October 28, 2004

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1508-02

STYLE OF CAUSE:                          TRAWLER CAT MARINE INC. et al.

v. GENE FOLDEN et al.

PLACE OF HEARING:                    Vancouver, BC

DATE OF HEARING:                      October 12, 2004, by teleconference with Meteghan, NS

and Vancouver, BC

REASONS FOR ASSESSMENT OF COSTS:                    CHARLES E. STINSON

DATED:                                                                                  October 28, 2004

APPEARANCES:

Graham N. Pfister                                                                      representing himself

Douglas G. Schmitt                                                                    for Defendant Ameriyacht, a Metro Group Company

SOLICITORS OF RECORD:

McEwen, Schmitt & Co.                                                           for Defendant Ameriyacht,

Vancouver, BC                                                                         a Metro Group Company