Anonsen (Re), 2009 FC 534

Date: 20090520

Docket: T-949-06

Citation: 2009 FC 534

 

ACTION IN REM AGAINST THE SHIP M.V. “LUKEY’S BOAT”

AND IN PERSONAM AGAINST THE OWNERS, CHARTERERS

AND ALL OTHERS INTERESTED IN THE SHIP M.V. “LUKEY’S BOAT”

 

BETWEEN:

SEALAND MARINE ELECTRONICS SALES & SERVICES LTD.,

a company carrying on business at the City of Mount Pearl,

in the Province of Newfoundland and Labrador

                                                                                                                                              Plaintiff

and

 

THE OWNERS, CHARTERERS AND ALL OTHERS

INTERESTED IN THE SHIP M.V. “LUKEY’S BOAT”

and

ADVENTURE TOURS INC.

and

CHARLES ANONSEN                              Defendants

 

 

 

ASSESSMENT OF COSTS – REASONS

 

 

 

Willa Doyle

Assessment Officer

 

 

[1]        The Court (Prothonotary Morneau) issued Judgment and Reasons for Judgment following the December 17, 2008 hearing on the merits of a simplified action.  In regard to costs the Judgment on page 8 reads as follows:

            “… As far as costs are concerned, because the Court considers that the plaintiff’s offer of an out-of-court settlement dated August 27, 2008, entails the application of subsection 420(a) of the Federal Courts Rules, the plaintiff is entitled to party-and-^party costs in accordance with column lll of the Tariff to the date of service of this offer and subsequently to costs calculated at double that rate, but not to double disbursements….”

 

[2]        On February 3, 2009 the plaintiff filed a bill of costs in the office of the Federal Court in St. John’s Newfoundland and Labrador and confirmed that the assessment should be done by way of written submissions. 

 

[3]        I issued a timetable to both parties regarding service and filing of any supporting materials / affidavits as evidence of disbursements pursuant to Federal Courts Rules Tariff B 1. (4), reply and subsequent rebuttal materials if any.  February 23, 2009 a one week extension in relation to the filing of submissions was sought and granted to both parties.  Both parties responded with written submissions.

 

[4]        The plaintiff is seeking the maximum number of units allowable under Column lll

 

of Tariff B of the Federal Courts Rules. This is a listing of the fees and units sought:

 

Item 1 - statement of claim, in rem and in personam; Warrant; Affidavit to lead warrant = seven units

Item 7 - affidavit of documents, Mar.27/07 = five units

Item 7 - Affidavit of documents, Sep.27/08 = five units

Item 10 - Preparation for Pre-trial conference, requisition for pre-trial conference; concise list of issues; preparation of pre-trial conference memorandum = six units

Item 10 - Preparation trial record (Rule 268) = five units

Item 11 - Attendance for pre-trial conference, June 11/08 = three units

Item 11 - Attendance for pre-trial conference, July 23/08 = three units

Item 11 - Attendance for pre-trial conference, Nov.20/08 = three units

Item 12 - Affidavit for the Plaintiff (Rule 299(1)) = three units

Item 13 - Counsel fee, preparation for trial, Dec.19/08 – 2 x five units = ten units

Item 14 - Counsel fee, at trial (3 hours) – 2 x (3x3) = eighteen units

Item 24 – Travel by counsel to attend trial – 2 x five = ten units

Item 25 – to serve Bill of costs – 2 x one = two units 

Item 26 – Assessment of costs – 2 x six = twelve units

 

 

[5]        The plaintiff states that the units sought are at the high end of Column III under Tariff B of the Federal Courts Rules due to the complexity of the Federal Courts Act, R.S.1985, c. F-7 and the Federal Courts Rules as they pertain to a warrant for, and the arrest of a ship and the extensive documentation required in order for a plaintiff to obtain those remedies and the procedures necessary to bring the matter forward to trial.  Also reference is made to the significant time and effort on behalf of the plaintiff in regard to the amount sought to be recovered from the defendants.

 

[6]        The defendants dispute the claim replying that it is not a complex procedure and that the action itself was a simple claim for an amount owing on a contract for the supply and installation of electronic equipment on a vessel.  The defendants ask that the minimum number of units be allowed. 

 

[7]        It is my respectful opinion that, based on the information provided by both counsel, the details of time in Court on both the pre-trial conferences and the hearing (available through the proceedings management system database) and the documentation on the court file, an award at the high end of Column III under Tariff B of the Federal Courts Rules is not reasonable in the circumstances.  As noted in paragraph [1] and highlighted by the defendant, this matter was in relation to a simplified claim.

 

[8]        In all bills of costs the costs must be considered reasonable and necessary to advance the litigation. The defendant in paragraph 3.d of their submission states; 

            “To allow the maximum amount prescribed by Column III of Tariff B as set out in the Plaintiff’s Bill of Costs would be unreasonable and unfair to the defendants for this particular cause of action. The judgment award itself, which includes contract interest for the year delay between the filing of the Statement of Claim and the next step in the proceeding, means that the award to the Plaintiff is an amount which is approximately three (3) times the original claim.” 

 

Then the defendant goes on to state in paragraph 3.e;

 

            “This statement of claim was issued in June 2006, almost two years after the contract was completed in August 2004…. This conduct of the Plaintiff unnecessarily lengthened the duration of the whole proceeding and negatively impacted the award of interest against the Defendants….The award of interest alone is approximately two times the original amount owing under the contract.”

 

And continuing in paragraph 5 the defendant states;

 

            “…It is more appropriate that the minimum number of units allowable under Column III in Tariff B be used to assess the Bill of Costs in the matter….”

 

[9]        In this file, I am of the same opinion.  In paragraph [4] of these reasons I listed the entire plaintiff’s claimed assessable services.  For ease of use, I have followed the same listing and am now showing the assessed and allowed assessable services in regard to this bill of costs.  In the subsequent paragraph to this listing I have given explanations for the reductions;

Item 1 - statement of claim, in rem and in personam; Warrant; Affidavit to lead warrant = four units

Item 7 - affidavit of documents, Mar.27/07 = two units

Item 7 - Affidavit of documents, Sep.27/08 = two units

Item 10 - Preparation for Pre-trial conference, requisition for pre-trial conference; concise list of issues; preparation of pre-trial conference memorandum = three units

Item 10 - Preparation trial record (Rule 268) (covered under item 1) = zero units

Item 11 - Attendance for pre-trial conference per hour, June 11/08 = one units x 40 minutes (9:30-10:10)

Item 11 - Attendance for pre-trial conference per hour, July 23/08 = one unit x 65 minutes (9:37-10:42)

Item 11 - Attendance for pre-trial conference per hour, Nov.20/08 = one unit x 20 minutes (9:30-9:50)

Item 12 - Affidavit for the Plaintiff (Rule 299(1)) = one unit

Item 13 - Counsel fee, preparation for trial, Dec.19/08 – 2 x two units = four units

Item 14 - Counsel fee, at trial (3 hours) – 2 x (3x2) = twelve units

Item 24 – Travel by counsel to attend trial, at the discretion of the court - 2 x 5 units = zero units

Item 25 – to serve Bill of costs – 2 x one = one units 

Item 26 – Assessment of costs – 2 x six = two units

 

 

[10]      Respectfully, reductions to the requested assessable service to either below the minimum, to the minimum or to zero are identified as follows; Item 10 - this item is covered within the scope of item 1 – preparation… Item 11 – this item is granted “per hour” and is consequently reduced in compliance with the time recorded as in attendance retrieved from the proceedings management system database.  Item 24 - travel by counsel is “at the discretion of the Court” and absent any such direction – zero units may be allowed.  Item 25 and Item 26 are not subject to the application of subsection 420(1) of the Federal Courts Rules.

 

 

[11]      In summary, the total number of units for assessable services claimed is reduced from 92 units to an allowed 33 units.  The plaintiff had claimed: " 92 units x $120.00 per unit = $11,040.00 + HST at 13% = $1,435.20 = Total fees $12,475.20."  Based on the preceding paragraphs, these figures are now amended to an allowed:” 33 units x $120.00 per unit = $3,960.00 + HST at 13% = $514.80 = Total fees $4,474.80”.  The Plaintiff’s disbursements are awarded at $648.50 as claimed as they are established by the sworn affidavit of Harold Young complete with attached exhibits.

 

[12]       The bill of costs presented at $13,123.70 is assessed and allowed in the amount of $5,123.30.  A certificate is issued in the Federal Court proceeding for $5,123.30.

                                                                                                           

         

                                                                                                                              “Willa Doyle”

 

 

 

 

Fredericton, New Brunswick

May 20, 2009

 

 

 

 

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-949-06

 

STYLE OF CAUSE:                         ACTION IN REM AGAINST THE SHIP M.V.                                                                                                                                     “LUKEY’S BOAT”AND IN PERSONAM AGAINST                                                                                                                           THE OWNERS, CHARTERERSAND ALL OTHERS                                                                                                                     INTERESTED IN THE SHIP M.V. “LUKEY’S BOAT”

                                                                                BETWEEN: SEALAND MARINE ELECTRONICS                                                                                                                          SALES & SERVICES LTD.,a company carrying on                                                                                                                       business at the City of Mount Pearl, in the Province                                                                                                                    of Newfoundland and Labrador -and-THE OWNERS, CHARTERERS                                                                                        AND ALL OTHERS INTERESTED IN THE SHIP M.V. “LUKEY’S                                                                                                   BOAT”-and -ADVENTURE TOURS INC. -and- CHARLES ANONSEN                             

                                   

 

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

 

 

ASSESSMENT OF COSTS -                    

REASONS BY:                                  Willa Doyle, Assessment Officer

 

                                                                                   

DATED:                                             May 20, 2009

 

 

 

 

WRITTEN REPRESENTATION BY:

 

 

Randy L. Wellon                                FOR THE PLAINTIFF

 

 Ellen E. Turpin                                  FOR THE DEFENDANTS

 

 

 

SOLICITORS OF RECORD:

 

C.B.S. Legal Services                      FOR THE PLAINTIFF

St. John’s, NL

 

Aylward Chislett & Whitten               FOR THE DEFENDANTS

St. John’s. NL