Date: 20080730
Docket: T-371-03
Citation: 2008 FC 929
BETWEEN:
FOURNIER PHARMA INC. and
LABORATOIRES FOURNIER S.A.
Applicants
and
THE MINISTER OF HEALTH and
CIPHER PHARMACEUTICALS LIMITED
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Respondent, Cipher Pharmaceuticals Limited (Cipher), served a Notice of
Allegation (NOA) alleging that marketing of its fenofibrate drug (Cipher
capsules) did not infringe Canadian Patent 2,219,475 (the ‘475 Patent).
Fenofibrate is a cholesterol-reducing drug. The Applicants brought this
application for judicial review (the judicial review proceeding) for an order
prohibiting the Respondent, the Minister of Health (the Minister), from issuing
a Notice of Compliance (NOC) permitting marketing of the Cipher capsules. The
Court dismissed the judicial review proceeding with costs to Cipher at the
upper end of Column III. As well, the Court directed that Cipher recover second
counsel fees for attendance at the cross-examinations and the hearing,
reasonable fees for preparation of its expert affidavit, reasonable travel
expenses “for the attendance of the respondents’ counsel on the
cross-examinations” and “reasonable disbursements…with respect to the
respondents’ expert.” I issued a timetable for written disposition of the
assessment of Cipher’s bill of costs.
I. Cipher’s Position
[2]
Cipher
argued generally further to Rule 400(3)(c) (importance and complexity) that the
Cipher capsules were its first product in the pharmaceutical market (annual sales
in 2002 of about US$449.9 million in the USA and about $35 to 40 million in
Canada). As well, being a recent and public company, success in this litigation
was critical for Cipher in attracting investors. The Applicants should not be
surprised that significant litigation costs resulted. The number of patents in
issue does not determine complexity. The Applicants led no evidence that patent
validity issues are more complex than patent infringement issues. The
Applicants’ submissions on an alleged agreement permitting Cipher to market the
Cipher capsules are flawed because the agreement fell apart due to Cipher’s
inability to obtain final government approval until this litigation was
resolved.
[3]
Cipher
argued further to Rule 400(3)(a) (result) that its success and the acceptance
by the Court of its expert warrants the costs claimed. Cipher argued further to
Rule 400(3)(g) (amount of work), (i) (mode of conduct) and (k) (improper steps)
that higher costs are warranted because the fees claimed ($46,216.20) are less
than 10 percent of the actual counsel fees paid and because the Applicants’
conduct in bringing four of five motions, listing a second patent and pursuing
an unsuccessful appeal lengthened the process. Cipher argued generally further
to Carlile v. Canada (1997), 97 D.T.C. 5284 (T.O.) [Carlile] that
absolute proof of all amounts is not required. The general practice of counsel
for Cipher was to pay directly any invoice under $5,000 and then bill the
client. Any invoice over $5,000, i.e. for the expert Dr. Christopher T. Rhodes,
was passed directly to the client for payment.
[4]
Cipher
argued that as the hearing judge here did not decide any of the cases cited by
the Applicants on the meaning of upper end, they are irrelevant for the
interpretation of the wording of the award here of costs. “Top end” is a
synonym of “upper end.” Several tariff items, such as counsel fee item 4
(preparation of uncontested motion) with a range of 2 - 4 units, have only
three numbers and therefore as the only possible upper end value is 4, the
award clearly contemplated maximum values. If the award of costs had intended
that only travel disbursements were recoverable, it would have used that
specific language. The term “travel expenses” can include both disbursements
and fees for the time of counsel in transit.
[5]
Cipher
argued that the record, including the Court’s decision, acknowledged the
credentials, relevance for the outcome, and varied work required of Dr. Rhodes,
i.e. foremost expert, literature search, document review, affidavit
preparation, response to the Applicants’ expert and two days of
cross-examination. The relative costs of the Applicants’ expert are irrelevant
for the assessment of Dr. Rhodes’ costs, as is the Applicants’ assertion that
Dr. Rhodes was a “Cadillac” sort of expert. The Applicants spent less for its
expert whose relevance for the outcome was deemed of little value. By contrast,
Cipher spent a reasonable amount ($60,863.55) for its expert which compares
favourably to the final total allowance of $205,062.91 for experts in Merck
& Co. v. Apotex Inc., [2007] F.C.J. No. 1337 (F.C.) [Merck].
[6]
Cipher
argued that the travel expenses ($16,526) for two counsel to get to four
locations (Providence, New York, San
Francisco
and Montreal) for cross-examinations and for one counsel to get to Washington, D.C. were
reasonable. The photocopies charged to the client at $0.25 per page were
reasonable. It is not always possible to distinguish between in-house copies
and those from commercial sites.
II. The Applicants’ Position
[7]
The
Applicants argued generally that Cipher’s bill of costs should be significantly
reduced because of insufficient evidence and absence of complexity. This
proceeding addressed infringement of a single patent as opposed to issues of
validity which tend to be more complicated. Cipher’s expert, Dr. Rhodes,
charged ($60,863.55) considerably more than the Applicants’ expert, Dr. Arthur
H. Goldberg ($32,992.68 at US$300 per hour).
[8]
The
Applicants argued that the evidence undermines Cipher’s assertion that its
fortunes hinged on the success of this litigation. That is, Cipher entered into
a distribution and supply agreement during this litigation and before approval
for sale of the Cipher capsules. As well, because Cipher planned to market the
Cipher capsules as a brand product as opposed to a generic product
interchangeable with the Applicants’ brand name product, it would not have been
able to take advantage of the interchangeability provision in provincial
formulas relative to health plans permitting pharmacists to dispense a generic
product when presented with a prescription for a brand name product. As Cipher
would have had to convince physicians to specify the Cipher capsules in any
prescription, Cipher’s potential sales would have been much smaller in turn
precluding any significant market share.
[9]
The
Applicants argued that the reference to “upper end” in the award of costs does
not necessarily mean the maximum value in the range for each fee item as the
Court specifically mentions “maximum end” or “top end” if maximum values are
intended, i.e. Rolls-Royce plc v. Fitzwilliam, [2003] F.C.J. No. 499 at
para. 5 (F.C.) [Rolls-Royce] and Apotex Inc. v. Syntex
Pharmaceuticals International Ltd. et al. (2000), 2 C.P.R. (4th)
368 at para. 13 (F.C.T.D.) [Apotex] varied on other grounds [2001]
F.C.J. No. 727 (F.C.A.). The same point in the range for each fee item in turn
need not be used as there may be varying elements of difficulty from step to
step and the same unit value need not be allowed for each hour if the characteristics
of a task vary throughout its duration: see Starlight v. Canada, [2001]
F.C.J. No. 1376 (A.O.) [Starlight]. Cipher did not lead evidence to
justify maximum values. Therefore, Cipher’s claim should be reduced by 64.3
units ($120 per unit) further to an allowance of one unit less than the maximum
for fee items 5 (preparation of contested motion), 8 and 9 (preparation for and
attendance on cross-examinations respectively), 13 (preparation for hearing)
and 15 (preparation of factum).
[10]
The
Applicants argued that the record confirms that Dr. Ian W. French was not
offered as an expert. Therefore, the fee item 2 claim for the preparation of
his affidavit and that of Dr. Rhodes should be reduced to 3 or 4 units. The fee
item 4 claim should be disallowed because the order was silent on costs. The fee
item 6 (attendance) claims for appearance on three motions at 12 units per hour
should be reduced to the maximum in the range (3 units per hour) and applied to
5.25 hours (total for three hearings) thereby reducing the claim by 47.25
units. The Applicants argued that the Court awarded reasonable travel expenses
as opposed to fees for the time of counsel and therefore the three claims for
fee item 24 should be disallowed. Alternatively and further to submissions
above on the meaning of upper end, the claimed total of 15 units for these fee
items should be reduced to 10 units. The Applicants argued that the total reduction
of fees should be $16,146 before taxes ($40,188 claimed). Further to the
submissions on disbursements below, the Applicants suggested a lump sum award
of $50,000 inclusive of taxes.
[11]
The
Applicants argued further to Allied Signal Inc. v. Du Pont Canada Inc.,
[1997] F.C.J. No. 993 at para. 20 (T.O.) [Allied Signal] and Dableh
v. Ontario Hydro, [1994] F.C.J. No. 1810 at paras. 15 and 17 [Dableh]
that scanty proof should or may result in reduced costs. The claim for Dr. Rhodes
should be reduced to $30,000 by means of a benchmark comparison as in Merck
at para. 37 to the charge ($32,992.68 including disbursements) for the
Applicants’ expert.
[12]
The
Applicants argued that Cipher’s evidence is insufficient and vague. For
example, the expert’s account, which included a charge for “outside
professionals”, is supported by invoices adding up to only $55,868.70. The
shortfall is inadequately supported by the bald assertion of the reasonableness
of the total $60,863.55 claimed and that there may be, not are, other invoices
which could not be located. The evidence does not identify the outside
professionals, and of the $3,979 paid to them, $1,200 was subject to GST
perhaps indicating payments to one or more unidentified persons additional to
Dr. Rhodes, who was the only expert to testify on behalf of Cipher. There was
no evidence that certain invoices (April 30 and May 31, 2004) were paid or
reasonable.
[13]
The
Applicants argued further to Tariff A3(4) that Cipher led no evidence of a
contract establishing a rate for Dr. Rhodes in lieu of $100 per day. The
evidence was vague as to his rate, i.e. what constitutes a full day or how
partial days were counted. The invoice for May 12-27, 2003 charged US$10,500
for three days’ work at US$3,500 per day, identified only May 23 as one of the
days worked and did not explain how the figure of three days was calculated.
The invoice for June 23-27, 2003 (US$10,000) asserted work on four days
(limited to notarization of his affidavit on the fourth day), yet at US$3,500
per day (not specified on this invoice) works out to less than three days’ work
if compared to the first invoice (US$10,500). His remaining two invoices were
also vague and inconsistent.
[14]
The
Applicants argued further to Halford v. Seed Hawk Inc., [2006] F.C.J.
No. 629 (A.O.) at paras. 79, 80, 82 and 86 [Halford] that the claim for
Dr. Rhodes should be reduced given the lack of evidence of details of what he
did and its relevance and of supervising counsel’s instructions to him and that
it was not work more properly to be done by counsel. The brevity of and lack of
detail in his invoices, such as the one dated May 27, 2003 for “examining
various documents pertinent to the…case…work on an expert report”, are
insufficient for an assessment of the reasonable necessity of his work.
[15]
The
Applicants argued that the evidence indicates repetitive work by Dr. Rhodes.
For example, the invoice for May 12-27, 2003 indicated review of
“pertinent” documents and a meeting with counsel after work on his expert
report. Yet, the invoice for June 23-27, 2003 charged for more review of
“background” documents and considerable work on his expert report. The
Applicants should not have to indemnify unpaid fees nor the costs of an
expert’s review of background information in a field in which he purports to be
an expert: see Biovail Corp. v. Canada (Minister of National Health and
Welfare) (2007), 61 C.P.R. (4th) 33 at paras. 32 and 34 (A.O.) [Biovail]
affirmed by [2008] F.C.J. No. 342 (F.C.).
[16]
The
Applicants noted the claims of $3,063.33 and $1,373.93 ($4,437.26 total) in the
June 25, 2003 law firm’s billing to Cipher for what appears to be respectively
return flights between Toronto and Providence, Rhode Island for two counsel to
apparently meet with Dr. Rhodes in May 2003 and for an unexplained flight
to Washington D.C. The Applicants argued that the $4,437.26 should be
disallowed given the absence of evidence of the necessity for a meeting in
person with Dr. Rhodes and for two counsel. As well, there is no evidence that
requisite economy fares were used: see Halford at paras. 105 and 120.
There is no evidence of the use of economy fares (six return flights, two each
to New York, San
Francisco
and Montreal respectively
averaging about $2,000 for each flight) and therefore the claim of $12,088.74
should be reduced.
[17]
The
Applicants argued further to Diversified Products Corp. v. Tye-Sil Corp.
(1991) 34 C.P.R. (3d) 267 (F.C.T.D.) and Merck & Co. v. Canada
(Minister of Health), [2007] F.C.J. No. 428 (A.O.) [Merck
assessment], varied on other grounds by Merck that the photocopying
claim ($17,526.90) should be reduced given absence of evidence of reasonableness,
necessity, actual cost of each copy, number of copies and type and purpose of
the documents. Cipher has claimed costs further to two orders silent on costs,
i.e. March 25, 2003, amended April 8, 2003 (the protection order) and May 9,
2003 (the scheduling order), which must be disallowed further to Ruckpaul v.
Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 755
(A.O.).
[18]
The
Applicants argued that there were inconsistencies in Cipher’s evidence for
photocopying costs. The invoices fell $2,203 short of the $17,526.90 claimed.
The Applicants argued that the total of $3,010.75 for photocopies from the
invoices dated January 31 and February 28, 2005 may not have related to
this matter given the timing of the hearing and decision, i.e. November 9-10
and December 9, 2004 respectively. The balance ($127.38) of disbursement totals
of $1,425.62 and $1,712.51 respectively for these two invoices should be
completely disallowed because of the absence of evidence justifying the other
items, i.e. facsimile, service, filing fees and research.
[19]
The
Applicants argued that the $17,526.90 claimed for photocopies should be reduced
to $3,412.50 (13,650 pages x $0.25 per page) per Merck assessment at
para. 36 as follows. Cipher’s motion records, books of authorities and
application record total about 1,600 pages and its affidavits about 490 pages.
Cipher claimed eight copies (the allowance in Merck assessment) for each
of the motion records and application record, i.e. three filed, one served, one
for the client and three for Cipher’s counsel. Since Halford at para.
247 held that a client copy is not assessable, the allowable total should be
11,200 pages based on seven copies each. The total for affidavits is 2,450
pages based on five copies each as three filed copies were not required.
[20]
The
Applicants argued that Cipher’s evidence did not contain any proof of
reasonable necessity and simply took the form of limited and unexplained
invoices and receipts resulting in gaps as follows (Applicants’ written submissions,
para. 58):
|
Disbursement Item
|
Amount Claimed
|
Total from Invoices
|
Shortfall
|
|
Courier
Faxes
Meals
Printing
& Reproduction
Process
Server
Research
Searches
Taxi
Filing
Fees
|
$1,760.18
$ 258.75
$1,670.73
$1,150.16
$1,019.21
$ 616.51
$ 19.02
$ 831.17
$ 160.00
|
$1,546.46
$ 244.00
$1,646.07
$ 82.79
$ 840.21
$ 571.89
$ 9.51
$ 794.16
$ 35.00
Total
shortfall
|
-$ 213.72
-$ 14.75
-$ 24.66
-$1,067.37
-$ 179.00
-$ 44.62
-$ 9.51
-$ 37.01
-$ 125.00
-$1,715.64
|
[21]
Some
of the underlying receipts indicated unreasonable and lavish expenditures, i.e.
CAN$301.93 for a meal in Rhode Island; CAN$371.64 and CAN $440.78 (CAN$812.42
total) for two meals in New York and CAN$227.26 for
three breakfasts in New York.
[22]
Some
expenditures, i.e. car/limo, car rental, conference room, court reporter,
courier, facsimiles, postage, printing and reproduction, parking, process
server, patent services, research, searches, supplies, taxi, long distance,
transcripts and filing fee, lack evidence and may relate to orders silent on
costs. Patent searches are not recoverable. The costs for electronic legal
research should be sharply reduced given the absence of evidence of its
parameters.
[23]
The
Applicants argued that the accommodation claim of $5,875.61 should be reduced
as follows. As above, there was no evidence of the relevance of the May 2003
meeting in Rhode Island with Dr. Rhodes, including the need for second counsel,
two nights’ accommodation and time in Washington D.C. Therefore,
$1,731.43 should be removed. The hotel rates for each of the two counsel for
Cipher (the November 2003 cross-examination in New York) were US$350
(four nights) and US$225 (two nights) per night respectively. Each counsel
should be restricted to two nights at US$225 per night for a total of
CAN$1,351.07. Only CAN$574.91 should be allowed for the cross-examination in San
Francisco
for similar reasons. That means a reduction of CAN$2,218.20 to an assessed
total of CAN$1,925.98 for accommodation in November 2003 in turn meaning a
total reduction of CAN$3,949.63.
III. Assessment
[24]
I
rely on my analysis in Abbott Laboratories v. Canada (Minister of
Health),
[2008] F.C.J. No. 870 (A.O.) [Abbott] (currently under appeal) of the
case law led here. I think that Abbott, Biovail and Halford
adequately lay out my approach to assessments of costs and which I will apply
here.
[25]
My
analysis in para. 18 of Mitchell v. Canada (Minister of National Revenue –
M.N.R.), [2003] F.C.J. No. 1530 (A.O.) of the meaning of the terms “towards”
the higher end versus “at” the higher end as applied there to Column V
sufficiently disposes of the intent here of the award of costs. Cipher may
claim the maximum value from the range for each permissible fee item, except
for fee items beyond the jurisdiction of the judgment for costs, i.e. such as
interlocutory orders silent on costs or not leaving it to the trial judge to
set the level of costs associated with given motions: see para. 73 of Abbott.
Accordingly, I disallow the claim for item 4 (preparation of uncontested
motion) as the protection order was silent on costs.
[26]
The
fee item 5 (preparation of contested motion) and 6 (appearance) claims for
three interlocutory hearings associated with orders giving costs to Cipher are
not subject to the reach of the trial judge’s award of costs because the motion
judge did not in each instance make the respective interlocutory awards of
costs subject to further directions. The only effect of the judgment here on
the August 19, 2003 interlocutory award of costs in the cause was to confirm
that Cipher was entitled to the costs of that motion. The judgment could not
purport to award costs of the motion at the upper end of Column III. The
Applicants’ submissions conceded 6 units ($120 per unit) (available range = 4-7
units) for fee item 5 and appeared to concede the maximum 3 units per hour for fee
item 6 and total combined duration of the 5.25 hours claimed. I allow these
items on that basis.
[27]
The
Court used the term “counsel fees” in directing recovery for second counsel. As
fee item 2 would include preparation of an expert affidavit, I think that the
use by the Court of the term “fees” for the “preparation of the
respondents’ expert affidavit” and of the term “disbursements” for the
“respondents’ expert” likely referred respectively to the expert’s hourly
rate and number of hours and to any related costs such as for travel. That
use of those terms therefore does not assist in determining whether the Court’s
use of the term “travel expenses” for the “attendance of the respondents’
counsel on the cross-examinations” addressed fee item 24 (travel time of
counsel). I concluded in Marshall v. Canada, [2006] F.C.J. No. 1282 at
para. 6 (A.O.) that there must be a visible direction by the Court to the
assessment officer specifically authorizing fees for the time of counsel in
transit. Such a direction is not however necessary to assess the associated
travel disbursements, the authority being Tariff B1(4): see also para. 75 of Abbott.
Strictly speaking, Tariffs A3(4) and B1(4) make a direction to assess the costs
of an expert unnecessary. An argument that the visible direction here for
“travel expenses” for attendance must include fee item 24 is undercut by the
presence of directions to assess disbursements for the expert and the absence
of the term “counsel fee” other than for second counsel. That is, it might be
difficult to conclude that the term “travel expenses” includes counsel fees and
is not limited to disbursements. I do not think that the Court had in mind fee item
24 and I therefore disallow the three fee item 24 claims.
[28]
In
Abbott, I expressed concerns about the use of benchmarks in assessing
the accounts of experts. I think that benchmarking somewhat presumes
homogeneous approaches to given subjects meaning individuals of the obvious
calibre of Dr. Goldberg for the Applicants and Dr. Rhodes for Cipher
should arrive at comparable conclusions with perhaps minor differences. This
latter occurrence is infrequent in my experience. Dr. Goldberg responded (p. 80
of the transcript of his cross-examination on November 18, 2003 on his
affidavit) to a question on whether Dr. Rhodes disagreed with him concerning a
certain property of fenofibrate by stating that “Dr. Rhodes has made mistakes
before, so has Linus Pauling, but _ _”. This and other instances
(pp. 21-23 of the transcript of his cross-examination) indicate divergence
in the results of their work. Divergence in results does not necessarily mean
differences in methods and amount of work. It does indicate to me that consideration
of whether the amount claimed for Dr. Rhodes is reasonable in
the circumstances of what he did may be the preferred tool of assessment
rather than simply benchmarking him against Dr. Goldberg’s work not ultimately
relied upon by the Court. I did however use Dr. Goldberg’s affidavit in
assessing the challenges posed by the Applicants’ case.
[29]
After
a series of questions establishing the history and possible connections of Dr.
Rhodes to the proceeding, the Applicants’ counsel addressed (pp. 17-22 of the
transcript of his cross-examination on November 25-26, 2003 on his affidavit)
the manner of writing his affidavit and the nature of his instructions from
supervising counsel. He made at least two drafts of his report, but was
uncertain as to the exact number of drafts. His instructions flowed from a
number of telephone calls from supervising counsel and at some point from
facsimile transmissions. His cross-examination included (p. 207 for example)
questions concerning Dr. Goldberg.
[30]
The
charge of $3,979 for “outside professionals” might have addressed services
other than those associated with Dr. Rhodes. If I can recognize a reasonable
charge given an invoice, I can likely recognize one without an invoice, albeit
with more difficulty. Paragraphs 59-61 inclusive of the Court’s decision noted
considerable divergence between the opposing experts. The evidence was unclear
on how Dr. Rhodes calculated his fees. One invoice charged US$3,500 per
day, which might work to about US$400 per hour. I conclude that $49,000
for experts is reasonable in the circumstances here.
[31]
The
evidence for most of the other disbursements essentially consisted of redacted
law firm billings to the client, as in Abbott, leaving only the
category, i.e. research, and the amount displayed. Abbott sufficiently
sets out my approach in those circumstances. Some categories such as courier,
facsimiles, photocopies and others were marked as GST exempt for some but not
all of the associated charges. Some research claims were marked as Quicklaw or
as Patent Pursuit and others were not marked with anything. Patent services was
also a category. Sometimes a category, such as meetings in Abbott, is
too obscure on its face to permit reasonable speculation in the absence of
evidence as to purpose and relevance. Others such as conference room here are
apparently obscure but permit reasonable speculation on purpose and relevance,
i.e. venue for US deposition. The category travel appeared to be
reserved for airfares given some charges under categories such as accommodation,
meals, taxis and car rental were marked as GST exempt and therefore likely were
for charges outside Canada.
[32]
I
allow the following items as presented: car/limo ($287.50); car rental
($169.13); conference room ($1,207.61); court reporter ($226); postage ($2.21);
parking ($103.93); patent services ($500); searches ($19.02); supplies
($53.76); long distance ($71.20); transcripts ($1,053.48) and filing fees ($160).
The claimed amounts of given disbursement categories may or may not have included
charges associated with interlocutory orders silent on costs. As in Abbott,
Biovail and Halford, there were gaps in the proof requiring
conservative allowances. I allow couriers ($1,760.18); facsimiles ($258.75);
photocopies ($17,526.90); printing and reproduction ($1,150.16) and process
server ($1,019.21) at the reduced amounts respectively of $1,375.00; $200.00;
$13,500.00; $900.00 and $650.00. Paragraph 111 of Abbott outlined my
usual concerns with computer research. I think that the claim ($616.51) here for
research was substantially for case preparation as opposed to interlocutory
events. I allow the $616.51 as presented.
[33]
As
noted above, the law firm billings to Cipher are in a redacted form removing
all details of the professional services rendered by counsel and leaving only a
list of disbursements. The June 25, 2003 billing disclosed disbursements for
travel by counsel to Washington D.C. on May 21, 2003.
Information on purpose may have been in the redacted portion. The impetus for
this trip may have flowed from the May 9, 2003 order directing the Applicants’
evidence to be served and filed by May 12, 2003, to be followed within 45 days
by Cipher’s evidence. The meals claimed ($27.28), other than for Toronto, in
this billing seem insufficient for this trip coupled with another trip by two
counsel around that time perhaps to meet with Dr. Rhodes, whose May 27, 2003
invoice referred to a meeting in Kingston, Rhode Island on May 23, 2003,
without specifying the other participants. Other than the accommodation
($538.68) identified specifically for this trip, the evidence was unclear as to
ground transportation and meal charges attributable to this trip. The evidence did
not state that superfluous charges were factored out of invoices but I note
some statements have been marked up as if that was done. There were unexplained
taxi charges to and from the Registry office in Toronto.
[34]
I
disallow the Washington
D.C. airfare
($1,373.93). On its face, the $15,152.07 remaining for airfare for four trips
each by two counsel is in the range of what I might expect, but the absence of
booking statements and boarding passes, other than for a roundtrip between
Toronto and Washington D.C. on a
regional carrier unlikely to have business class seats, makes reasonableness
somewhat obscure. Full fare economy tickets offer flexibility should hearings
or depositions be cancelled, shorter or longer: see Abbott at para. 105.
There was no hint in the evidence on the need for meals in Toronto. I allow
accommodation ($5,875.61); meals ($1,670.73); travel/airfares ($16,526) and
taxis ($831.17) at the reduced amounts respectively of $5,000.00; $1,400;
$15,152.07 and $750.
[35]
The
bill of costs claimed $7,825.48 GST relative to a claimed subtotal for
disbursements which as in Abbott included charges not subject to GST
such as for Dr. Rhodes and US hotels. As noted above, some - but not all -
charges in disbursement categories such as couriers and photocopies not
obviously outside Canada (such as Dr. Rhodes) were marked as GST exempt.
I do not have information permitting a GST exemption calculation as in Abbott.
The record here requires a certain imprecision for this calculation which
should result in a conservative allowance in these circumstances. I allow 7%
GST on $33,000 of the assessed subtotal of $92,247.42 for disbursements.
Cipher’s bill of costs, presented at $165,994.29, is assessed and allowed at
$131,417.12.
"Charles E. Stinson"
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