Court File No.: T-2637-96
BETWEEN:
TAYLOR MADE GOLF
COMPANY, INC. and
SALOMON CANADA
SPORTS LTD.
Plaintiffs
-
and -
SULLY
IMPORTS LTD.
Defendant
TAXATION OF
COSTS - REASONS
Smith, G.M.
Taxing Officer
This is a taxation on a
party-and-party basis of the plaintiffs' costs of this action.
These proceedings were commenced by
way of a Statement of Claim filed on December 2, 1996. On April 1, 1997,
judgment issued against the defendant in default of defence. The plaintiffs
were also awarded their costs of the action.
On June 26, 1997 the plaintiffs filed
a Bill of Costs supported by the affidavit of Carolyn Knobel sworn June 2,
1997. The plaintiffs' requested the taxation proceed by way of written
representations, without the personal appearance of the parties. As attested
to in the affidavit of Allen Kirk, sworn September 12, 1997 and filed the same
day, the Bill of Costs and supporting documentation were served on the
defendant on August 22, 1997.
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2 -
On September 15, 1997, directions
were issued to the parties that the defendant would have until Tuesday,
September 30, 1997 to file written representations in reply to the plaintiffs'
Bill of Costs and the plaintiffs would have until Friday, October 10, 1997 to
file written representations in further reply to those made by the defendant.
In the eventuality, no further representations were received from either
party. I therefore assessed the plaintiffs' costs on the basis of the documentation
which then appeared on the Court record.
The plaintiffs claim for services
relating to items 1, 4 and 26 of Tariff B, Part II, Column III. The Bill of
Costs itself distinguishes those services in connection with the two lawyers
from the firm representing the plaintiffs. For example, the plaintiffs' claim
for "Preparation of Statement of Claim" identifies 6 units - Mirko
Bibic and 1 unit - Kathryn Chalmers. I do not take this to mean that the
plaintiffs are claiming for first and second counsel as, for example, might
only be permitted under items 14 and 22 of the Tariff and if so directed by the
Court. Rather, I interpret the delineation of the two lawyers quite simply as
justification for the maximum of seven units allowable under that item. I have
therefore allowed the maximum for each item for a total of 14 units, multiplied
by the unit value of $100 and arriving at a total amount of $14,000 for
services.
Costs are also claimed for process
services, film development, search and filing fees. Those disbursements were
supported by invoices appended to the affidavit of Carolyn Knobel. I have
allowed them as claimed.
Disbursements are claimed as well for
telecopier charges, photocopying and binding. However, I have decided to
disallow those items for the following reason. Charges for photocopies and
telecopy appear among a plethora of other items in the solicitors' disbursement
ledger, a copy of which is exhibited to the Knobel affidavit. It would appear
then that they are in-house expenditures as opposed to out-of-pocket
expenditures which would normally be supported by an invoice or a voucher. No
detail is provided as to, for example, what was copied or telecopied, the
number of copies that were made and the purpose, or the actual or estimated
cost incurred by the law firm for making the calls or the copies. The ledger
does not refer to binding at all.
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3 -
In dealing with a similar claim in an
earlier taxation in the case of F-C Research Institute Ltd. v. H.M.Q.,
unreported, Court file no. T-2338-87, September 21, 1995, I expressed the
opinion that the simple delineation of expenditures generally described in a
Bill and supported only by the scant statement that they were reasonable and
necessary fails to provide sufficient information upon which a taxing officer
can discharge the responsibility of being satisfied that the costs claimed were
essential to the conduct of the proceedings, that they were prudently incurred,
or that the quantity or rate applied, as the case may be, was reasonable in the
circumstances. Later taxations in this Court, Grace M. Carlile v. H.M.Q.,
Court file number A-486-93, Stinson T.O., May 8, 1997 and AlliedSignal Inc.
v. Du Pont Canada Inc., Court file number A-600-93, Reinhardt T.O., July
16/97, both unreported, have allowed photocopies at a rate which the taxing
officer determined himself, rather than disallowing the disbursement
completely, because the service had obviously been incurred.
In the present case, I do not know if
the costs for telecopy, binding and photocopies were for multiple documents or
for only one. I have no manner by which to determine whether 25¢ was charged
or $1.00 per page. I also do not know what was photocopied or what portion of
the amount claimed is for binding and what amount is for photocopies. Nor has
it even been shown whether those costs were remotely related to the action or
highly relevant. As for binding, the Court record consists of only one
document produced by the plaintiffs which was bound, but it could hardly have
cost anywhere near the total amount of $363.25 claimed. I therefore have no
way of determining whether the amount was in any way reasonable or necessary.
Nor, for that matter, do the plaintiffs in their affidavit or written
representations aver to that fact.
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4 -
Unless the parties agree, the party
whose bill is being assessed must prove the disbursement. No agreement has
been brought to my attention and the information provided by the plaintiffs and
described above falls well short of establishing any basis for even guessing at
an amount for which, in a party-and-party context, the defendant should be held
accountable. The words used in section 3 of Part III of Tariff B to the Rules,
"Such other disbursements as were reasonably necessary in the
proceeding", must surely have been intended to require something other
than the simple production of a list.
Quite simply, I am unable to
determine in any way, and then certify, that the disbursements claimed for
photocopies, telecopying and binding were reasonably necessary in these
proceedings and, in my opinion, it would be absurd for me to assume, in the
absence of any agreement of the parties, that the plaintiffs' list is
sufficient to meet the "reasonably necessary" requirement of section
3.
Accordingly, the plaintiffs' Bill of
Costs is assessed in the total amount of $1,955.55.
"Gregory
M. Smith"
Gregory
M. Smith
Taxing Officer
Ottawa, Ontario
October 23, 1997
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