Date: 20061108
Docket:
A-323-05
Citation: 2006 FCA 364
BETWEEN:
NEW
ERA CAP COMPANY, INC. and NEW ERA CAP COMPANY
Appellants
and
CAPISH? HIP HOP INC., CAPISH?
SILVER INC.,
CAPISH? BLING BLING INC. and NASSER
DAHOUI
FORMERLY IDENTIFIED AS JOHN DOE IN ACTION
NO. T-346-05
Respondents
ASSESSMENT OF
COSTS - REASONS
PAUL
G.C. ROBINSON
ASSESSMENT
OFFICER
[1]
This
is an assessment of costs pursuant to the Judgment dated February 14, 2006 by
the Federal Court of Appeal which dismissed with costs the appeal by New Era
Cap Company, Inc. and New Era Cap Company. The Notice of Appeal arose from an
Order of the Federal Court dated June 30, 2005 on Court File No. T-798-05 that
dismissed the Appellant’s Motion for a Contempt of Court Order against the two Respondents,
Capish? Hip Hop Inc. and Nasser Dahoui.
[2]
On
August 23, 2006, the Respondents filed their Bill of Costs and requested an
assessment of costs.
[3]
On
the same date, I forwarded correspondence to the parties informing them that
this matter was appropriate for disposition by way of written submissions and
set a timetable for the filing of all materials. All supporting and opposing materials of
the respective parties regarding the assessment of costs were submitted within
the timeframes which included an Amended Respondents’ Bill of Costs.
[4]
It
should be noted that the unit value for assessable services in Section 4 of
Tariff B of the Federal Courts Rules was increased to $120.00 on April
1, 2005. This amount was confirmed as the present Tariff B unit value in the
spring of 2006 and this will be the unit value that I will be using in my
assessment of the Respondents’ Bill of Costs.
I. Assessment
[5]
In
the Amended Bill of Costs, the Respondents have claimed 3 units for its item 24
- Travel to hearing. The Respondents in the Submissions of the Respondents at
paragraph 5 have indicated “that the legal counsel for the Respondents had to
travel to and from their offices in north-western Mississauga, Ontario in order to
attend this hearing in downtown Toronto, a trip of
approximately two hours to the hearing and one hour from the hearing. As such,
item 24 should be allowed.” The Appellants have objected to the Respondents’
claims for this specific assessable service and refer to the decision of Baker
Petrolite Corp. v. Canwell Enviro-Industries Ltd., [2002] F.C.A. 482
(F.C.A.) which the Appellants have indicated supports their objections.
[6]
It
is worthy to note that item 24 of Tariff B of the Federal Courts Rules,
actually reads:
24. Travel by counsel to attend a trial,
hearing, motion, examination or analogous procedure at the Direction of the
Court.
Although the Appellants have referred to Baker
Petrolite Corp., supra in support of their objections to the travel
assessable services claimed by the Respondents, I prefer to rely on the reasons
in Beaulieu v. Canada, [2000] F.C.J. 2127 (TO) at paragraph 10 which
states:
... In item 24 of the bill of costs the
respondent claimed the sum of $500 for travel by counsel. In her written
submissions in reply Ms. Lavergne was prepared to reduce this amount to $100.
At the same time, the appellant based her objection on the phrase "at the
discretion of the Court" contained in item 24, which she submitted did not
extend to the assessment officer where no specific directions to that effect
had been given. The appellant is correct: only judges have the discretionary
authority to compensate counsel for travel.
I have reviewed the material in the Court
record and have determined that no such direction exists, therefore Item 24 is
disallowed.
[7]
The
Appellants have objected to the Respondents’ claim “for 5 units for preparation
for trial” and submit that this Tariff B item “has no application to an Appeal
to the Federal Court of Appeal from the findings of a Trial Judge.” I do not agree.
I note that item 13(a) of Tariff B of the Federal Courts Rules actually reads:
13. Counsel Fee:
(a) preparation for trial or hearing,
whether or not the trial or hearing proceeds, including correspondence,
preparation of witnesses, issuance of subpoenas and other services not
otherwise particularized in this Tariff;
[Emphasis
is mine]
In my opinion in this specific instance,
the key phrase is “preparation for trial or hearing”. I find it
reasonable that a solicitor about to appear at a hearing before the Federal
Court of Appeal would review all the submitted arguments and associated case
law prior to attending the scheduled hearing. For these reasons, common sense
dictates to me that that the Respondents should be allowed to claim for
preparatory work associated with this Federal Court of Appeal hearing.
Therefore, I exercise my discretion and I allow the 5 units ($600.00) claimed
for this assessable service.
[8]
The
Appellants in their submissions at paragraph 9 have indicated that “costs per
unit cannot and should not exceed the actual hourly rate charged to the client.
Therefore, the Appellants have no objection to an award of costs to 22(a) for
the five hours claimed at the billed unit of $200.00 per hour.” I note that
item 22(a) is actually calculated by multiplying the number of hours associated
with the hearing by the unit value claimed by the Respondents. Notwithstanding
the Appellants novel argument regarding this assessable service, I am not
persuaded that I should depart from the Tariff B method of calculating item
22(a) – Attendance by 1st counsel (5 hours x 3 units per hour).
Therefore, I allow the 15 units ($1,800.00) for this assessable service.
[9]
The
Appellants have indicated in their submissions that they have no objections to
the Respondents’ claim for item 19 – Preparation of Factum & Book of
Authorities and item 25 – Services after judgment not otherwise specified for 7
units and 1 unit respectfully. Therefore, I allow a total of 8 units ($960.00)
for these assessable services.
[10]
This
assessment of the Respondents’ Bill of Costs has proceeded by way of written
submissions. It is my opinion that they were simple in nature and both parties
did participate in the filing of materials which did assist me in the
assessment of the Bill of Costs. I reduce Item 26 (Assessment of costs) to 2
units ($240.00) for the reasons I have outlined in the first two sentences of
this paragraph.
[11]
The
Appellants have indicated that they have not taken any issue with the
disbursement amounts plus associated GST requested for this Bill of Costs. I
have noted that the three exhibits associated with the disbursements evidence
contained in the Affidavit of Hyder Masum, sworn September 7, 2006, included
the GST in their respective totals. I have assumed the entire disbursement
amount includes GST based on the sparse information that has been offered to
support the amount claimed. For greater clarity, I only allow this amount for
disbursements plus the associated GST since I do not wish to allow a
duplication of the consumption taxes. Therefore, I allow the $576.75 for
disbursements in its entirety which includes the GST.
[12]
The
Respondents’ Bill of Costs in A-323-05 is assessed and allowed in the amount of
$3,600.00 for assessable services plus associated GST of $216.00 and disbursements
of $576.75 which includes applicable GST for a total of $4,392.75. A
certificate is issued in this Federal Court of Appeal proceeding for $4,392.75 payable
by the Appellants to the Respondents.
“Paul Robinson”
Paul G.C.
Robinson
Assessment Officer
Toronto, Ontario
November
8, 2006
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-323-05
STYLE
OF CAUSE: NEW ERA CAP COMPANY, INC. and NEW ERA
CAP
COMPANY v. CAPISH? HIP HOP INC.,
CAPISH?
SILVER INC., CAPISH? BLING BLING
INC.
and NASSER DAHOUI FORMERLY
IDENTIFIED
AS JOHN DOE IN ACTION NO.
T-346-05
ASSESSMENT
OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL
G.C. ROBINSON, Assessment Officer
DATED: November
8, 2006
SOLICITORS
OF RECORD:
Kestenberg Siegal Lipkus LLP
Toronto, Ontario FOR
THE APPELLANTS
Mangal & Masum
Mississauga, Ontario FOR
THE RESPONDENTS
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