Enterprises A.B. Rimouski Inc. v. Canada, docket T-2674-92

     Date: 19990310

     Docket: T-2674-92

BETWEEN:

     LES ENTREPRISES A.B. RIMOUSKI INC.

     - and -

     ALDÈGE BANVILLE

     Plaintiffs

     AND:

     HER MAJESTY THE QUEEN

     Defendant

     ASSESSMENT OF COSTS - REASONS

MICHELLE LAMY, ASSESSMENT OFFICER:

[1]      On October 11, 1996, at the end of a eleven-day trial, Mr. Justice Denault dismissed the action of plaintiff Aldège Banville both personally and in his capacity as assignee of the rights of Les Entreprises A.B. Rimouski Inc. On appeal (file A-874-96), the Court upheld the dismissal of the action for the remedy sought by Aldège Banville and ordered that the file be referred back to the Trial Judge for reconsideration and judgment on the action by the company. The Court awarded costs of the appeal in file A-874-96 to Mr. Aldège Banville.

[2]      The trial judge issued his decision on October 9, 1998, after considering the evidence adduced at trial and in response to the points raised by the Court of Appeal in its judgment, dismissing with costs the plaintiff"s action in his capacity as assignee of Les Entreprises A.B. Rimouski Inc. That decision by Mr. Justice Denault is presently on appeal (file A-647-98). Accordingly, this concerns the assessment of the defendant"s costs resulting from the decisions dated October 11, 1996 and October 9, 1998, which dismissed the action of plaintiff Aldège Banville in his personal capacity and as assignee of the corporation. The assessment was held by conference call on February 10, 1999, in the presence of Aldège Banville with Robert Ladouceur and Stéphane Lilkoff for the defendant.

COUNSEL FEES

[3]      The counsel fees claimed in the defendant"s bill of costs total $26,428:

Item	Assessable Service	Column III/ Unit(s)	Amounts
2	Preparation and filing of defence	5	$500.00
3	Amendment of defence	4	$400.00
7	Discovery of documents	4	$400.00
13(a)	Preparation for hearing	4	$400.00
13(b)	Preparation for hearing per day in Court after the first day	3 X 10 days	$3,000.00
14(a)	To first counsel, per hour in Court	3 X 69.76 hours	$20,928.00
24	Travel by counsel to attend a hearing	3	$300.00
25	Services after judgment	1	$100.00
26	Assessment of costs	4	$400.00

[4]      Aldège Banville argued that the defendant is not entitled to any costs resulting from the proceedings at trial because the Court of Appeal set aside Denault J."s judgment of dismissal in part on October 11, 1996, and awarded costs in file A-874-98 to Banville. It is important to remember that in this decision, the instant matter was referred back to the trial judge for judgment on the merits of the action, i.e. the portion of the action which concerns the company, and that the Court of Appeal upheld Denault J."s decision with respect to plaintiff Aldège Banville. The costs awarded to the appellant in file A-874-96 are limited to the file on appeal. Until the Court rules on the appeal against Denault J."s decision of October 9, 1998, it is clear that the Crown may claim costs resulting from this action.

[5]      In light of the preceding, all of the counsel fees claimed are allowed except those claimed under item 24, as I have no discretion to order costs under this item without a specific order to that effect. The amount of work involved in an eleven day trial is a determining factor which justifies the items claimed. Mr. Banville did not make any representations on the number of units claimed for each of the assessable services.

DISBURSEMENTS

[6]      In her bill of costs, the defendant claimed Registry fees of $2,100 which were paid under Tariff A. The following disbursements were added during the conference call:

- bailiff"s invoice in the amount of $113.29 for service of the bill of costs and the appointment;

- Mr. Lilkoff"s travel and accommodation expenses totaling $3,792.70 for the hearings held on April 2, 3 and 4, June 3, 4, 5 and 6, and September 23, 24, 25 and 26, 1996 at Québec.

[7]      All of these expenses are allowed as claimed except for the costs of service. In the instant case, it would have been more reasonable to serve Mr. Banville by fax.

[8]      The defendant"s costs total $32,020.70. A certificate is hereby issued for this amount.

                                     MICHELLE LAMY

    

     MICHELLE LAMY

     ASSESSMENT OFFICER

MONTRÉAL, QUEBEC

March 10, 1999

Certified true translation

M. Iveson

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

Date: 19990310

Docket: T-2674-92

Between:

     LES ENTREPRISES A.B. RIMOUSKI INC.

     - and -

     ALDÈGE BANVILLE

     Plaintiffs

     AND:

     HER MAJESTY THE QUEEN

     Defendant

    

     ASSESSMENT OF COSTS - REASONS

    

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

Date: 19990310

Docket: T-2674-92

Between:

     LES ENTREPRISES A.B. RIMOUSKI INC.

     - and -

     ALDÈGE BANVILLE

     Plaintiffs

     AND:

     HER MAJESTY THE QUEEN

     Defendant

    

     CERTIFICATE OF ASSESSMENT OF COSTS

    

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:      T-2674-92

STYLE OF CAUSE:         

                 LES ENTREPRISES A.B. RIMOUSKI INC.

     - and -

     ALDÈGE BANVILLE

     Plaintiffs

     AND:

     HER MAJESTY THE QUEEN

     Defendant

PLACE OF ASSESSMENT:          By conference call between Montréal, Quebec, Rimouski, Québec and Ottawa, Ontario

DATE OF ASSESSMENT:          February 10, 1999

ASSESSMENT OF COSTS - REASONS OF M. LAMY, ASSESSMENT OFFICER

DATE OF REASONS:          March 10, 1999

APPEARANCES:             

Aldège Banville          for the plaintiffs

Robert Ladouceur and Stéphane Lilkoff      for the defendant

SOLICITOR OF RECORD:

Morris Rosenberg          for the defendant

Deputy Attorney General of Canada

Ottawa, Ontario