Express File Inc. v. HBR Royalty Inc., 2006 FCA 268

Date: 20060728

Docket: A-364-03

(A-365-03)

Citation: 2006 FCA 268   

Between:

EXPRESS FILE, INC.

Appellant

AND

HBR ROYALTY, INC.

Respondent

ASSESSMENT OF COSTS –REASONS

MICHELLE LAMY, ASSESSMENT OFFICER

[1]               This is an appeal of the decision of the Federal Court dismissing an appeal from the decision of Prothonotary Morneau, in which the Prothonotary ordered that certain portions of an affidavit be struck on the ground that they were hearsay, contrary to Rule 81 of the Federal Courts Rules.  As requested, the assessment of the respondent’s costs proceeded on the basis of written submissions.

[2]               Having examined the record and reviewed the submissions made by the appellant, the fees are allowed in the amount of $1,680 for the following items: 19 (5 units/preparation of the memorandum of fact and law), 21a) (3 units/response to appellant’s motion for reconsideration)

and 22 (3 units X 2 hours/hearing of September 15, 2004).  The claim made under item 5 is compensated under item 21, since items 16 to 22 of Tariff B must be used to assess costs in an appeal initiated under Part 6 of the Rules.  As submitted by the appellant, no fees can be awarded under item 24, as there is no order or direction of the Court in that regard.

[3]               Considering that the proceedings in both cases are identical and that the appeals were heard on the same basis, all costs requested in file docket number A-365-03 are denied in order to avoid double compensation for the services rendered by counsel.  Given that the value of the unit was readjusted on April 1, 2005, pursuant to subsection 4(1) of the Tariff, and that the respondent filed its bills of costs after that date, I have made the adjustment in calculating the amount of the fees.

[4]               The costs of the respondent are taxed and allowed in the amount of $1,680.  A certificate is issued for that amount in Court file A-364-03 and a copy of these reasons is placed in Court file A-365-03.

DATED AT MONTREAL THIS 28^th DAY OF JULY, 2006.

FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                           A-364-03

STYLE OF CAUSE:

EXPRESS FILE, INC.

Appellant

AND

HBR ROYALTY, INC.

Respondent

ASSESSMENT WITHOUT PERSONAL APPEARANCE OF PARTIES

PLACE OF TAXATION:                  Montreal, Quebec

ASSESSMENT OF COSTS –

REASONS BY:                                  MICHELLE LAMY, ASSESSMENT OFFICER

DATE OF REASONS:                     JULY 28, 2006

SOLICITORS OF RECORD :

Sim, Hughes, Ashton & McKay

Toronto, Ontario                                                           for the applicant

Fraser Milner Casgrain

Montreal, Quebec                                                         for the respondent