Date: 20100318
Docket: A-196-09
Citation: 2010 FCA 78
BETWEEN:
SIMPSON
STRONG-TIE COMPANY, INC.
Appellant
and
PEAK
INNOVATIONS INC.
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Court dismissed with costs this appeal of an order of the Federal Court
upholding an order of the case management prothonotary dismissing the
Appellant’s application for production of documents and for answers to
questions refused in the cross-examination on an affidavit relating to an
appeal of a decision of the Registrar of Trade-marks. I issued a timetable for
written disposition of the Respondent’s bill of costs.
Counsel Fees: item 18 (preparation
appeal book claimed at 1 unit / available range = 1 unit; hereafter, the
numbers following the description of the fee item represent the available range
of units in the Tariff); item 19 (memorandum of fact and law claimed at 7 units
/ 4-7 units); item 24 (travel by counsel from Vancouver to Toronto / 1-5
units) and item 26 (assessment of costs / 2-6 units)
Disbursements: Online searches
($3.60); Photocopies at $0.35 per page ($180); Courier ($70); Long Distance
Telephone ($37.26); Binding ($26.22); Toronto Hotel ($418); Toronto Taxis ($76.14);
Airfare Vancouver-Toronto ($494.92) and Toronto Meals ($71.63)
I. The Appellant’s
Position
[2]
The
Appellant argued that nothing should be allowed for fee item 18 because it was
the Appellant who prepared the appeal book. Only 4 units should be allowed for
fee item 19 as there was no evidence that this was anything but a simple
appeal. An assessment officer has no jurisdiction to allow fee item 24 in the
absence of a specific direction of the Court.
[3]
The
Appellant conceded the claimed airfare to Toronto (hearing
venue) given the receipt in evidence, but argued generally that the absence of
receipts and business logs for the other claimed disbursements such as online
searches, couriers, long distance and binding should preclude their allowance.
Although some assessment officers have exercised discretion in such
circumstances to allow real expenditures deemed necessary to advance
litigation, the absence here of any effort to produce supporting evidence
should preclude that result. As the Respondent will achieve some success on
this assessment of costs by its nature, the claimed 3 units for fee item 26
should be reduced or disallowed given the inadequacy of the evidence.
[4]
The
Appellant argued that in addition to the absence of evidence for photocopies,
the claimed rate of $0.35 per page is well above that of commercial outlets and
the amount claimed may be some sort of estimate as it is not evenly
divisible by $0.35. On their face, the charges of $418 and $71.63
respectively for accommodation and meals for one night in Toronto seem
excessive. The absence of receipts prevented the Appellant from gauging reasonableness
and ensuring that inappropriate items such as alcohol and movies were not
included. An adverse inference should be drawn given the Respondent did not
discharge its onus to produce supporting evidence.
II. The
Respondent’s Position
[5]
The
Respondent argued that the real work necessary to review the contents of the
appeal book for completeness justifies fee item 18: see paragraph 11 of Actra
Fraternal Benefit Society v. Canada, [2000] D.T.C. 6491, [2000] F.C.J.
No. 1214 (A.O.). The maximum for fee item 19 is justified because the
memorandum of fact and law is the most important part of an appeal.
The Respondent argued that the claimed disbursements were obviously
incurred to support this litigation and were reasonable in the circumstances.
III. Assessment
[6]
I
have not summarized the respective submissions of the parties concerning fee
item 22(a) (appearance at the hearing claimed at 2 units per hour for 2 hours /
2-3 units per hour) because, although the Court did not call upon counsel for
the Respondent, he still had to prepare for and attend the full hearing without
any expectation of not having to speak. The Respondent is entitled to fee
item 22(a) claimed here in any event at the minimum 2 units per hour. I agree
with the Respondent on the responsibility to review the contents of the appeal
book and allow fee item 18 as presented. I allow only the minimum 2
units for fee item 26 in these circumstances of the proof.
[7]
My
findings in Halford v. Seed Hawk Inc. (2009), 69 C.P.R. (4th)
1, [2006] F.C.J. No. 629 (A.O.), Biovail Corp. v. Canada (Minister of
National Health and Welfare) (2007), 61 C.P.R. (4th) 33,
[2007] F.C.J. No. 1018 (A.O.), aff’d (2008), 64 C.P.R. (4th) 475,
[2008] F.C.J. No. 342 (F.C.) and Abbott Laboratories v. Canada (Minister of
Health) (2008), 66 C.P.R. (4th) 301, [2008] F.C.J. No. 870
(A.O.) [Abbott] (under appeal) set out my views on the threshold of
proof for categories of costs and approach to their assessment. Paragraphs
68 to 72 inclusive of Abbott above summarize the subjective elements and
the notion of rough justice in assessments of costs. In paragraphs 38 to 40 of Aventis
Pharma Inc. v. Apotex Inc., [2009] F.C.J. No. 56 (A.O.) [Aventis
2009], I reinforced my view that an assessment of costs should reflect the
reality of the demands of litigation. Paragraph 14 of Merck & Co. v.
Apotex Inc. (2009), 73 C.P.R. (4th) 423, [2008] F.C.J. No. 1656
(F.C.A.) held that “in view of the limited material available to assessment
officers, determining what expenses are “reasonable” is often likely to do no
more than rough justice between the parties and inevitably involves the
exercise of a substantial degree of discretion on the part of assessment
officers.”
[8]
I
concluded in paragraph 7 of Starlight v. Canada, [2001] F.C.J. No. 1376
(A.O.) that the same point in the ranges throughout the Tariff need not be used
as each fee item for the services of counsel is discrete and must be
considered in its own circumstances. As well, broad distinctions may be
required between an upper versus lower allowance from available ranges. This
was not the simplest or the most difficult of appeals. I allow 6 units for fee
item 19.
[9]
Further
to my comments in paragraph 3 of Abbott above, I disallow the fee item
24 claim (travel time of counsel) as 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
essential and associated travel disbursements, which might include those for
second counsel where relevant.
[10]
I
allow the online charges, couriers, long distance tolls, binding and airfare as
presented. Paragraph 65 of Abbott above summarized my practice for
photocopies including the need “to strike the appropriate balance between the
right of a successful litigant to be indemnified for its reasonably necessary
costs and the right of an unsuccessful litigant to be shielded from excessive or
unnecessary costs.” The proof here was less than absolute. I allow 500 pages at
$0.25 per page for a total of $125.
[11]
Counsel
for the Respondent travelled from Vancouver to Toronto on Saturday
for a Monday hearing and returned home Monday evening after the hearing. I find
that reasonable in the circumstances of having to acclimate oneself to a
different time zone, yet minimize expenses by not avoiding an evening
flight home. Thus, $418 for two nights of accommodation in Toronto is generally
in order, but yielding slightly to the Appellant’s concern for the lack of
details of that charge, I reduce it to $370. I allow the taxis and meals as
presented.
[12]
On
occasion, it is difficult as here to discern from the format of a bill of costs
how PST and GST were applied. Here, the claimed subtotal of $1,377.77 for
disbursements was presented under a subheading indicating it was inclusive of
PST without detailing which items were affected. GST ($96.44) on
disbursements was a separate entry in the bill of costs, but without details of
its calculation. That is, GST of five percent would have to be applied to
$1,928.80 and not $1,377.77 to give $96.44. The record does not assist in
clarifying this. I am not inclined to attempt a GST exclusion calculation: see Abbott
above, Aventis 2009 (paras. 73-73) above and Aventis Pharma Inc. v.
Apotex Inc., [2008] F.C.J. No. 1238 (A.O.) (para. 31). GST is not taken on
PST. My assessed subtotal for disbursements is $1,274.77 inclusive of any PST.
As in paragraph 73 of Aventis 2009, I make a conservative estimate
and allow only $50 for GST.
[13]
The
Respondent’s bill of costs, presented at $4,531.81, is assessed and allowed at
$3,217.57.
“Charles
E. Stinson”
Vancouver, BC
March 18, 2010
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