Date: 20100610
Docket: T-1655-04
Citation: 2010 FC 626
BETWEEN:
CANADIAN
PRIVATE COPYING COLLECTIVE
Applicant
and
FUZION TECHNOLOGY CORP.
and
1565385 ONTARIO INC.
and
MICKEY YEUNG
Respondents
ASSESSMENT OF
COSTS – REASONS
DIANE PERRIER,
ASSESSMENT OFFICER
[1]
This
is an application brought by the Canadian Private Copying Collective (CPCC) regarding
Part VIII of the Copyright Act, R.S. 1985, c. C-42 which established the
private tariff copying regime. On October 25, 2006, the Federal Court rendered
the following order :
1. Within
thirty (30) days of this order the Respondents, Fuzion Technology Corp.,
1565385 Ontario Inc. and Mr. Mickey Yeung, shall make available to the
Applicant’s auditors, for the purpose of an audit, all of the business,
accounting and financial records of Fuzion Technology Corp. and 1565385 Ontario
Inc., from which the Applicant’s auditors can readily ascertain:
a. the
amounts payable, and
b.
the information required,
under the
Private Copying Tariffs certified by the Copyright Board;
2.
If the audit reveals any amounts payable and demand
therefore is made by the Applicant and no payment is made by the Respondents
within 30 days of such demand, the Applicant may bring this matter back before
this court on 10 days notice;
3.
Any renewed application under paragraph 2 above, may be
accompanied by affidavit evidence, based on the results of the audit,
demonstrating the outstanding levy debt, interest due thereon and the cost of
the audit;
4.
I shall remain seized of this matter and will hear, if
necessary, the renewed application referred to in paragraph 2 above; and
5.
The Applicant shall have their costs in this matter from
the Respondents.
This order was appealed and on October 25,
2007, the Federal Court of Appeal dismissed the appeal of the appellants with
costs.
[2]
On
October 22, 2009, counsel for the applicant filed their bill of costs with the
affidavit of Denise Pope and exhibits DP-1 to DP-10 inclusively and requested an
appointment for the taxation of their bill of costs. After a telephone
conversation with applicant’s counsel, it was decided that the taxation of the
bill of costs would be dealt with in writing. On November 4, 2009, letters were
sent to parties setting a timetable for the filing of written representations. On
December 4, 2009, counsel for the respondent, Mickey Yeung, sent a letter to
the Registry requesting that the taxation of the applicant’s costs be suspended
until a motion from respondent be heard in order to vary the order of the Federal
Court as to costs. On December 10, 2009, counsel for the applicant sent a
letter to the Registry objecting to the respondent’s request as to the
suspension of the bill of costs. On December 18, 2009, letters were sent to
both parties setting a new timetable for the filing of written representations.
Respondent, Mickey Yeung, requested an extension of time which was granted by
the assessment officer. Written representations were filed by both parties. I
am now ready to proceed with the taxation of applicant’s bill of costs.
[3]
In
response to respondent’s, Mickey Yeung, written representations concerning the fact
that applicant took more than 3 years to bring the taxation of costs before the
assessment officer after the order of the Federal Court, I would like to refer
to the case Nature’s Path Foods Inc. v. Country Fresh Enterprises Inc.
[2007] F.C.J No. 151, 2007 FC 116 at paragraph 19 from assessment officer
Stinson that states : “… I am aware of Rules 392(2) and 406 which do not impose
a time limit on the effect of an order and within which to bring an assessment
of costs respectively.” Therefore the applicant’s taxation of costs will
proceed.
[4]
Applicant’s
counsel fees requested at $13,935 are allowed in the amount of $9,058.70. This
figure is based on my reasoning in the following paragraphs :
[5]
Item
1 – Notice of application – Applicant is seeking 6 units: the allowable range
for column III on this item is 4 to 7. Respondent in his submissions
submits that 4 units should be allowed because the Notice of application is a
relatively simple document totalling 6 pages, 2 of which consist of template as
set out in the Federal Court forms. Respondent also mentions that a charge of 6
units for the preparation of a simple application record is excessive and credit
should only be provided for the minimum number of units as provided by Tariff
B. The applicant argues that the application was not a simple document to
prepare and the 6 units requested by CPCC are reasonable under the
circumstances. This was one of the first applications ever brought under Part
VIII of the Copyright Act which is recent legislation only having been
enacted in 1998. CPCC also raised complex factual and legal issues that were
presented to the Court by means of a detailed application and supporting
affidavits containing all of the necessary evidence. This item is allowed at 6
units because I consider this matter as an important matter and reasonable for
the case at bar.
[6]
Item
5 – Reply written representations to respondent’s motion for an Order striking
the affidavit of service upon respondent – Fuzion Technology Corp.– CPCC is
claiming $1,000 that I will allow because on April 29, 2005, Prothonotary
Lafrenière rendered an order granting costs to the applicant as follows : $500
in the cause and $500 in any event of the cause.
[7]
Item
7 – Discovery of documents, including listing, affidavit and inspection is
denied since this item is for compensating services rendered under Rules
222 and subsequent of the Federal Courts Rules in relation to a discovery
in the context of an action.
[8]
Item
8 – Preparation for examination of Mickey Yeung (3 units), Laurie Gelbloom
(3 units), Ivor Gottschalk (3 units) and Laurie Gelbloom (3 units) will be
allowed as requested. This item serves to compensate the party for the time
preparing for each examination on affidavit. The allowable range for column III
on this item is 2 to 5 units. I found that the applicant’s request is
reasonable.
[9]
Item
9 – Attending on examinations, per hour of Mickey Yeung (2 units x 2 hours),
Laurie Gelbloom (2 units x 2 hours), Ivor Gottschalk (2 units x 2 hours) and
Laurie Gelbloom (2 units x 2 hours) is allowed as requested because I
found that the applicant’s request is reasonable.
[10]
Item
10 – Preparation for conference held on September 23, 2005 is refused because
this matter is a judicial review and item 10 is under sub-paragraph D Pre-Trial
and Pre-Hearing Procedures which relies on Rule 258 of the Federal Courts
Rules in an action.
[11]
Item
11 – Attendance at conference on September 23, 2005 is refused because as
mentioned in paragraph 10 of the said reasons this item is to compensate
services for attendance at a pre-trial conference in an action not in a
judicial review.
[12]
Item
13a) – Preparation for trial or hearing (4 units) is allowed because I found
that this is reasonable for the case at bar.
[13]
Item
14a) – Hearing held on October 18, 2006 (3 units x 5.5 hours) is claimed by the
applicant. The duration of the hearing according to the abstract of hearing is 5.33
hours (9:34 to 2:50) that I will allow. As for the number of units, I will
allow the 3 units requested that I found reasonable.
[14]
Item
24 – Travel by counsel to attend trial, hearing, motion, examination or
analogous procedure is refused because this item is at the Court’s discretion.
Since there is no order or direction from the Court in the file allowing it,
the assessment officer is without jurisdiction to allow it. No units are
allowed for item 24.
[15]
Item
26 – Assessment of costs (4 units) is allowed as requested because this item is
not contested.
[16]
Item
27 – Answers to undertakings of Laurie Gelbloom (2 units) and Anwers to
undertakings of Ivor Gottschalk (2 units) are allowed as I found this request
reasonable for the case at bar.
Disbursements
[17]
Respondent,
Mickey Yeung, contests applicant’s costs for travel to Toronto and taxi fares
because applicant’s counsel could have been from Toronto. As
mentioned by applicant, counsel from Montreal always acted on their
behalf. To this, I respond that as per section 11 of the Federal Courts Act
there is no restriction in the choice of counsel by a party so respondent can
be represented by counsel from Montreal. However, I will not
allow the request for air travel for examinations to Toronto on June 6, 2005 in
the amount of $706.14 and the examinations to Toronto on October 24, 2005 in
the amount of $745.59 because I found that the fares for air travel are not
reasonable for the case at bar. In this case, the air travel fares should not
be more than $400 for a round trip Montreal – Toronto as mentioned
by respondent’s counsel in his written representations. So, I will allow for
each trip $400 for air travel that I found reasonable and necessary for the
case at bar as well as the taxis as requested.
[18]
I
have allowed the following disbursements: travel to Ottawa – hearing October
18, 2006 in the amount of $76.65, bailiff fees – service of the notice of
application in the amount of $295.49, copy charges in the amount of $464.10,
transcripts in the amount of $706.50, messenger services in the amount of
$71.68, long distance call in the amount of $78.08, telecopier in the amount of
$36 and telecopier – long distance in the amount of $4.12 because they are
proven in the affidavit of Denise Pope, they are not contested and they are
reasonable and necessary for the case at bar. Therefore, disbursements will be
allowed in the amount of $2,800.68.
[19]
Applicant’s
court fees in the amount of $100 are allowed for the Notice of application and
for the requisition for hearing.
Costs of the assessment
[20]
Respondent,
Mickey Yeung, in his written representations in opposition to the bill of costs,
requests that pursuant to Rule 408(3) of the Federal Courts Rules the
assessment officer fix an amount of $2,000.00 payable forthwith to respondent
Mickey Yeung by applicant. Rule 408(3) states that: “An assessment officer may
assess and allow, or refuse to allow, the costs of an assessment to either
party.” I would like to point out that only the Court has the power to allow costs
on a judgment in virtue of Rule 400(1) of the Federal Courts Rules. The
role of the assessment officer is to quantify the costs once the Court has
awarded them to a party which in this case is the applicant, CPCC. Therefore, I
have no authority to allow costs to the respondent, Mickey Yeung.
[21]
Applicant’s
bill of costs presented in the amount of $17,387.51 is assessed and allowed in
the amount of $11,959.38. A certificate of taxation will be issued for this
amount.
MONTRÉAL, QUEBEC
June 10,
2010
“Diane
Perrier”
DIANE PERRIER
ASSESSMENT
OFFICER
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