Date: 19971202
Docket: T-1160-90
BETWEEN:
C & B VACATION PROPERTIES and
CORPORATION DROVELLE LTÉE.
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
Defendant
TAXATION OF COSTS - REASONS
W. F. Wendt, TAXING OFFICER
[1] In his judgment on the action, the Honourable Mr. Justice Nadon granted solicitor-client costs in favour of plaintiffs. Argument on the taxation of costs was presented in Ottawa on September 24, 25, 26 and the morning of September 29. Counsel were Mr. William Burrows Q.C. assisted by Mr. Pierre Champagne for the plaintiffs, and Ms. Sylvie Roussel for the defendant.
[2] The parties presented thorough submissions. Written arguments and books of authorities were submitted by each side. Among the cases referred to by the parties were Harbour Brick Co. v. Canada, [1987] F.C.J. No. 1121 (T.D.); Apotex Inc. v. Egis Pharmaceuticals, 37 C.P.R. (3d), 335 (Ont. Ct. Gen. Div.), Samsonite Canada Inc. v. Enterprises National Dionite Inc. [1995] F.C.J. No. 849 (T.D. Taxing Officer), Camp Robin Hood Limited v. The Queen [1982] 1 F.C. 19 (T.D.), Diversified Products Corp. v. Tye-Sil Corp. 41 F.T.R. 227, 34 C.P.R. (3d) 267 (T.D.), City of Calgary v. Spoletini et al. (No. 2) 32 L.C.R. 277 (Alta. L.C.B.), Capus Developments T-1116-74 (Proth.), Desjardins v. National Capital Commission 25 L.C.R. 205 (F.C.T.D.), Temkin Inc. v. Canada (A-641-92 F.C.A. Taxing Officer), Byers Transport Limited v. Kosanovich (A-333-94 F.C.A. Taxing Officer). Both plaintiffs and defendant also referred to Todd, The Law of Expropriation and Compensation in Canada (2nd ed., 1992).
[3] This case involves the expropriation of a subdivision named "La Corniche du Parc" in Gatineau Park. A number of the lots had been sold before development was frozen by expropriation. The subdivision was described as unique by the Honourable Mr. Justice Cullen in the Weber case (which involved the expropriation of one of the lots that had been sold), with "prospective purchasers secure in the knowledge that they would have no construction around this subdivision and that it would be a green area for eternity." The trial lasted 56 days.
[4] In these reasons, I will summarize the positions of the parties on a number of the issues raised in argument, and will give my conclusions.
The scale of Solicitor-client Costs in an Expropriation Case
[5] It was submitted by defendant that the scale of costs to be awarded in an expropriation case is less liberal than in other solicitor-client taxations for these reasons: the costs are paid by another party, which had no say in the services being retained; plaintiffs were not unwilling litigants; the costs must be both reasonable and necessary and directly related to the expropriation proceedings; a carte blanche approach is not appropriate. Defendants also submitted that the amount claimed as costs is disproportionate to the amount of the Court's award.
[6] Plaintiffs argued for reasonableness as the sole criterion, and submitted that expropriation is one of the most intrusive of legal procedures. The latter contention is evident and pertinent to the taxation.
[7] There are cases that set out an academic analysis of different categories or scales of taxation, and I should not contribute more to that discussion. Here, plaintiffs are entitled to full compensation of expenditures that were reasonable at the time they were incurred. The criteria to consider in establishing whether an expenditure is reasonable are outlined in Camp Robin Hood v. Canada [1982] 1 F.C. 24 at 27, 28. They are quoted by Taxing Officer Lamy in Temkin Inc. v. Canada (A-641-92) as follows: "(1) the amount of the offer, (2) the amount of the award, (3) the complexity of the issues involved, (4) the skill and competence required to present the issues, (5) the experience of solicitors and counsel, (6) the time expended on preparation, and (7) the fees allowed in ... Tariff B ... as a possible comparable guide."
[8] This approach does not amount to a "Crown cheque made out in blank" (Harbour Brick). As stated in Singer v. Singer [1975] 11 O.R. (2d) 234 at 241: "For instance, the retaining of two or more counsel where only one was necessary, the employment of several consultants such as engineers, appraisers, architects, where only one or two were necessary, and that kind of thing should not lead to increased liability on the losing party to pay his opponent's costs, even on the solicitor-and-client or so-called full indemnity basis ...."
The Indemnification Principle
[9] It was submitted by defendant that as some of the most substantial amounts in plaintiffs' bill have not yet been paid, and as the purpose of costs is to indemnify, there is a concern about the reasonableness of levying these charges against the opposing party. Plaintiffs submitted that, if reasonable, the item should be accepted.
[10] I stated at the taxation that I had jurisdiction to proceed with the taxation whether or not each of the items had been paid. The question of indemnification then becomes one of reasonableness. It will be dealt with separately for each item.
The Plaintiffs' Success
[11] The parties viewed the amount awarded, in terms of the plaintiffs' success, from different perspectives, and there was debate on the percentage rate of success. Defendant submitted that the award was 23% more than offered, and at this percentage a more conservative application of solicitor-client costs is appropriate.
[12] There is no dispute in dollar amounts. The crux of this issue is whether plaintiffs proceeded prudently in mounting a legal case in view of the success achieved, and accordingly whether it is reasonable to have the related costs indemnified by the opposing party.
[13] In my view, the Plaintiffs' success is significant and substantial: additional compensation of $823,000 beyond defendant's offers totalling $1,520,000, and penalty and interest of $1,575,481. I cannot as general principle for this taxation reduce the costs because of limited success.
Complexity
[14] The parties also held divergent views on the complexity of the action: defendant saw the case as a normal expropriation matter, albeit lengthy because of factual issues; plaintiff as one with a number of unique features.
[15] In my view this case had issues of greater than normal complexity in an expropriation proceeding, involving in addition to the usual matter of valuation an assessment of developers' profit, development and selling costs, the number of lots amenable to development, and the projected pace of sales. Again I will not reduce the award on this ground.
Effective Date for Commencement of Costs
[16] Defendant submitted that fees and disbursements before the confirmation of the notice of expropriation (May 1, 1989) should not be allowed. Plaintiffs agreed that the Beaudry Bertrand account was not taxable with regard to the inquiry (October, November, and December up to December 20), but submitted that a ludicrous result would follow if the date is taken as the notice of confirmation.
[17] Under subsection 10(9) of the Expropriation Act the hearing officer fixes the costs of asserting an objection to the proposed expropriation. The Hearing Officer's report, dated March 30, 1989, awarded compensation for attendance at the hearing: "Carl McInnis, representing C & B Vacation Properties and Drovelle Corporation Limited, the sum of one hundred dollars for written materials submitted at the public hearing...."
[18] Subsection 29(1) requires the Crown to pay "legal, appraisal and other costs reasonably incurred ... in asserting a claim for that compensation ...." Prior to the registration of the notice of confirmation, a party may object to a proposed expropriation, but does not yet assert a claim for compensation.
[19] As stated by Todd in The Law of Expropriation and Compensation in Canada, at page 501: "The Canada, Ontario and New Brunswick Acts make limited and inadequate provision for the recovery of costs incurred in objecting to a proposed expropriation at a public hearing or inquiry."
[20] In Desjardins v. N.C.C. (page 208) the Honourable Mr. Justice Cattanach states, "The expropriated party is to be saved harmless from any cost caused him by the registration of a notice of intention to expropriate his property. He is entitled to ascertain his legal rights and the amount of compensation he may claim consequent upon the action of the Crown and he is to be reimbursed for the costs antecedent to the beginning of an action."
[21] In Atlantic Warehouses Ltd. v. Canada [1987] FCJ No. 63 Taxing Officer Pilon states: "Any expense claimed between March 1, 1981 (the date of the Notice of Intention to Expropriate) and January 8, 1982 (the date of the filing of the Statement of Claim) falls under Section 27." For an equitable result, I feel it is necessary to adopt this interpretation.
Counsel fees - the Beaudry Bertrand Account
[22] Beaudry Bertrand were the first solicitors for the plaintiffs. The most difficult issue on this account was the date at which the account was eligible for taxation, which I have dealt with above. In addition I have disallowed the items for interviews with Radio Canada on May 3 ($52.00) and April 24 ($65.00), and tax (TVQ at 4%, GST at 7%). Plaintiffs did not contest the deletion of these items.
Counsel fees - the Nelligan Powers Account
[23] Nelligan Powers replaced Beaudry Bertrand as counsel for the plaintiffs. The main issue with respect to the Nelligan Powers account is the hourly rate charged by various counsel. Plaintiffs are claiming premium rates. Defendant submitted that the hourly rates claimed for Mr. Burrows ($350), his daily rate for trial ($2800), and the hourly rates for Ms. Devlin ($165) and Mr. Champagne ($135) were too high. Defendant submitted that the rates for Ms. Devlin and Mr. Champagne were excessive in view of their dates of call to the bar. Defendant compared the rates claimed, and in particular Mr. Burrows' rate, with the rates in Weber (as explained, Mr. Weber had purchased one of the other lots before expropriation). Defendant also objected to Mr. Burrows' daily rate being charged for 2 days with only brief appearance, and submitted that a reduction in counsel fees was appropriate after the first day of trial.
[24] As further substantiation, defendant filed a copy of a portion of the transcript in Minister of Transportation of Ontario v. Tripp et al., in which Mr. Burrows testifies on hourly rates in support of a rate of $275 per hour for an experienced lawyer. In this testimony, Mr. Burrows identifies as most critical the expertise that would lead to an appropriate number of hours. He includes some commentary on the subject case, and states that his own hourly rate has not changed since 1992.
[25] Plaintiffs submitted that the fees charged were justified by the services provided, the complexity of the case, and the result achieved. It was agreed that a fee of $275 was appropriate in Weber, where billing was on a 30-day basis, and accounts paid within 30 days; here, however, there has been an outstanding account, and the issues were much more difficult than in Weber. With interest taken into account, it was submitted that the $350 works out to about the same as the $275 charged in Weber.
[26] Plaintiffs submitted that the rates claimed for services of Ms. Devlin and Mr. Champagne are proper, and that defendant's comparison with rates in Hull did not take into account that the latter tend to be lower. Further, although Mr. Champagne was called in 1995, his qualification of professional engineer and his fluency in both official languages enhanced his contribution to the case.
[27] With regard to the 2 days with brief appearance, plaintiffs explained that there were 7 hours docketed for the first of the days (June 7, 1995) and 2 hours docketed for the second (June 8, 1995), which justifies a reduction of 7 hours. Plaintiffs also agreed with a deletion of .3 hours for a conversation with the Ottawa Citizen.
[28] A review of the record indicates that there were other days that did not have a full day of court appearance, but there was no objection to full daily rate for these days. As counsel explained that there were many days of the trial in which lead counsel docketed more than 8 hours, and that the practice is to use a global daily rate for senior counsel, I will allow the full rate for these days.
[29] Defendant also objected to fees paid to Mr. Burrows' firm when plaintiffs were represented by a previous solicitor, to time spent by counsel organizing files, and research of American jurisprudence, and to telephone calls without explanation of relevance to this case.
[30] Plaintiffs gave these explanations:
- There were discussions with the client before Nelligan Power counsel was retained, this being necessary as plaintiffs' counsel at Beaudry Bertrand was about to receive a judicial appointment.
- Time spent by counsel organizing files included reviewing files, which was relevant.
- Research on American jurisprudence was necessary with regard to developers' profits, American jurisprudence being more progressive, and this was relevant.
- Phone calls to counsel for other lot owners within the development, and to a real estate agent for adjacent property, were relevant.
[31] Plaintiffs also referred to the decision in Moreno v. Canada (Minister of Employment and Immigration), [1996] FCJ No. 218, in which an hourly rate of $350 was allowed.
[32] The account of Nelligan Power, counsel for plaintiffs, includes fees and disbursements:
- total fees of $409,488.85
- disbursements 27,130.31
- GST 28,664.22
$465,283.38
[33] The fees portion of the bill is comprised of the following:
- Mr. Burrows: 366.95 hours x $350 = $128,432.50
56 days at $2800 = $156,800
- Mr. Welchner: 228 hours x $135 = $3078.00
- Ms. Devlin: 382.25 hours x $165 = $63,071.25
- Mr. Champagne: 302.6 hours x $165 = $49,929.00
- students / clerks: 116.83 hours x $70 = $8178.10
As noted, plaintiffs do not dispute a reduction of 7.3 hours in Mr. Burrows' account.
[34] A premium rate requires imagination and ingenuity leading to an excellent result. After consideration of the record, I am confident that Mr. Burrows and his team presented a vigorous and effective case on behalf of their clients. I am also influenced by the duration of the outstanding account and the corresponding opportunity cost to counsel for plaintiffs. The latter consideration is tempered somewhat as a substantial portion of the account is relatively recent. I also note that the rate applied in Moreno, cited by plaintiffs as precedent, was not disputed. Except for the two days of trial and the conversation with the journalist, I have accepted the time spent by counsel. I also, however, feel it is appropriate to reduce the hourly rates of counsel. I do this in view of the considerations mentioned above, as well as junior counsel's duration of experience, a comparison of the rate in Weber, the advantages of Mr. Champagne's engineering background and facility in both official languages, and the testimony in Minister of Transport of Ontario v. Tripp et al. I have also taken into account the inclusion of students' and other items as separate expenses in this bill, which might otherwise have been overhead. The reductions I have applied are:
- for Mr. Burrows, from $350 / hour to $300 (x 359.65 hours = a reduction of $17,982.50) and from $2800 per day to $2400 (x 56 days = a reduction of $22,400);
- for Ms. Devlin, from $165 / hour to $150 (x 382.25 hours = a reduction of $5773.75);
- for Mr. Champagne, from $165 / hour to $140 (x 302.6 hours = a reduction of $7565).
[35] This amounts to a total reduction of $53,721.25, and of GST of $3760.48.
Students' and Law Clerks
[36] As noted above, the students and law clerks portion of the bill totals $8178.10. Defendant submitted, and there is a line of cases to such effect, that costs associated with students and law clerks are a part of overhead, and therefore included with counsel fees.
[37] Plaintiff stated that the practice in counsel's firm was to bill student time separately.
[38] There are many occasions in which it is more practical and economical to assign portions of the work to law clerks and law students, with billing at lower rates, and such fees may properly be costs to the client. In these cases the expenses may be permissible on a solicitor-client taxation. This item is considered as a part of the whole bill, to determine if the billing practice represents a reasonable economy to the client. On consideration of the times spent and services provided, I feel the claim for students and law clerks is appropriate. The exceptions are items for support services, such as attendance at court to file documents. These are not disputed by plaintiffs. I have reduced the bill by an amount of 14.68 hours for such services, a total of $1027.60, and a further amount of $71.93 for GST.
Nelligan - Power Account: Disbursements
Photocopying
[39] Defendant submitted that although $.25 per page may be reasonable in some cases, here because of the volume of copying the amount should be reduced.
[40] Plaintiffs explained that a sliding scale is used within the firm and no profit is made on photocopying. For 0 - 100 copies the rate is $.25; for 101-250, $.20; for 251-500, $.15; for 501-10,000, $.10.
[41] As is sometimes the case, the material is imprecise in support of this item; nevertheless, I will attempt to do justice to the account and to both parties. First, I will permit two parenthetical observations. It is difficult to imagine why the plaintiffs would require, for example, more than 100 copies of any document in the litigation. And if it is assumed that the scale is based not on copies per page but on total pages produced, it is difficult to imagine what combination of number of copies and pages would produce a charge of $11.20.
[42] Photocopy charges are permissible. A graduated scale that takes into account the economy of volumes is practical. On consideration of what is general knowledge of the cost of copying, I feel a reduction of 40% is warranted ($3089.80 at 40% = $1235.92 reduction).
Other Disbursements
[43] Defendant objected to disbursements for photocopying, and long distance charges to counsel and parties in Florida and Mexico.
[44] Plaintiffs explained that the calls were all for facsimile transmission: a copy of the decision was sent to one of plaintiffs in Florida; and an outline of the result was sent to counsel in Mexico. I accept this explanation.
[45] Defendant objected to a payment to a witness who did not appear as an expert. This was an item of $1681.98 to R.H. Nugent Equipment Rentals Ltd. consisting of 5 hours preparation, 9 hours court time, and 4 hours travel. Plaintiffs explained that Mr. Nugent is a general contractor who builds most of the roads in the area, and that he testified in the manner of an expert, although not technically an expert witness, on the construction of a road in the subdivision. Although with some reservation, I consider it a valid expense and therefore reasonable in this bill.
[46] Defendant objected to docket entries for transcribing notes (a total of 7.8 hours at $70), and for translation. Mr. Burrows explained that the transcription was necessary as he was unable to be present when the notes were recorded, and that the translation would not have been necessary if defendant's expert report had been provided earlier. I accept these items as claimed.
[47] Defendant objected to disbursements for QuickLaw legal research. I accept these expenditures as claimed.
[48] Defendant also objected to the inclusion of a disbursement of $15,675 for fees owing to the Registry for a hearing over 3 days. The record reveals an understanding that this fee will be paid by defendant, and, as plaintiffs acknowledged, it should not have been included in their bill.
Accounts of Appraisers, Surveyors and Engineers
1. Mint Realty Account
[49] Defendant submitted that it is not reasonable for plaintiffs to recover the fees paid to the first of its appraisers, Mint Realty. The Mint Realty report was not used in the proceedings, and although not inappropriate at the time, defendant submitted that the fee should not now be recoverable as plaintiffs subsequently retained another appraiser. Defendant's position is that I should either disallow the first appraiser's account or reduce the second. Further, as the Mint Realty report was the basis of the original claim of $4.4 million, defendant submitted that it was not realistic, and therefore that it is unreasonable.
[50] Plaintiffs stated that although previous counsel had obtained the Mint Realty report, it was prudent to obtain new expert evidence. Mr. Burrows had worked with Mr. Roy of Pigeon Roy on a number of expropriations and had great confidence in his work. Plaintiffs submitted that this does not invalidate the costs of the original report, and in fact the defendant also chose to use two expert appraisers.
[51] I consider that it was not unreasonable for plaintiffs to have proceeded in this manner, and I allow the item as claimed.
2. Bussières and Bérubé Account.
[52] Defendant submitted that the survey done by Bussières and Bérubé was not necessary in the litigation: it did not lead to testimony, and indeed defendant was not previously aware of the report.
[53] Plaintiffs submitted that the survey was necessary to correct information in defendant's expert report with regard to the placement of a trail and spring runoff.
[54] I accept this explanation, and I consider the account reasonable.
3. Pigeon Roy Account
[55] Defendant objected to full payment of the Pigeon Roy account, based on a comparison with another expert account, the value of the report at trial, and the degree of success and complexity. It was submitted that the amount of time spent, the number of adjustments to figures, the dubious reception of some of the evidence by the Court, and the assumptive nature of the evidence raise questions about the utility of portions of the report and in general about this witness's contribution to plaintiffs' case. Defendant submitted that the inadequacies must have been serious: they prompted Mr. Roy to dismiss a secretary. It was also submitted that a substantial portion of this report was a duplication of work done by Mr. Roy in the Weber case and work done for other lot owners; as a result the number of hours for preparation and review is unreasonable. Further, in view of the qualifications of the original appraisers, either could have done the extra work assigned to Mr. Roy.
[56] As indicated above, it was plaintiffs' position that it was reasonable to obtain Mr. Roy's services even though an earlier appraisal had been obtained by previous counsel. Mr. Roy, who was the appraiser on the Weber case, had also worked on a number of other cases with Mr. Burrows, and was Mr. Burrows' first choice as appraiser. Plaintiffs submitted that the Weber case was very relevant to this one, and that the new appraisal was prepared to be consistent with that in Weber. It amounted to a significantly more conservative appraisal than the original.
[57] Plaintiffs reviewed the Roy account in detail, including the number of hours spent on the various services provided. In summary, the position was that the time spent was reasonable, the work was new with the exception of background information common to this and the Weber appraisal; both parties' experts made adjustments in the course of the trial; typographic changes are not material to the taxation; the only significant adjustment to the valuation (downward, $250,000), was made over one evening; and the presence of Mr. Roy during others' testimony and some of the argument was necessary to support plaintiffs' case.
[58] Defendant objected to other expenses in the Roy account, including secretarial and travel expenses, a site visit, the witness's attendance during argument, the need for copies of a number of deeds, and an item for preparation of the account, there being only one instance of this item.
[59] It is not necessary to recite each of plaintiffs' explanations. On due consideration I accept the work done by Mr. Roy as being reasonable to plaintiffs' case. As defendants submit, the report contains much that is duplication of the report prepared for the Weber case. But since the properties are in the same subdivision, it should not have been otherwise, and I accept the time spent by Mr. Roy in its preparation. Further, I do not consider the impugned accuracy of the report and the adjustments and corrections, or the reaction of the trial judge, sufficient to conclude that the services retained were not reasonable. Note on this point the decision of Taxing Officer Lamy in Temkin Inc. v. Canada.
[60] On taxation of the Pigeon Roy account, I have made the following adjustments to the September 11, 1995 invoice:
- change from 142 hours to 136 hours;
- deletion of 4 hours for the item for preparation of account - this should be included in overhead;
- further reduction from 136 hours to 130 for the double billing for August 22.
The billing rate changed from $180 to $250 for this invoice, and except for the August 22 reduction, it is unclear what hourly rate I should apply to the change. I have chosen a global amount of $200 per hour (taking into account both principal and tax) for the reduction of 16 hours, a deduction of $3200.
[61] I have adjusted other invoices in this account as follows:
- August 30, 1995: delete 2.5 hours at $250 and 4.5 hours at $180 (a deletion of $1435 not disputed by plaintiffs);
- November 1, 1995: change from 51.5 hours to 47 hours at $195 per hour, (a deduction of $877.50);
- December 1, 1995: change from 63.55 hours to 64 hours at $195 per hour, (an addition of $87.75);
- May 31, 1996: change from 40.4 hours to 41.3 hours at $195 per hour, (an addition of $175.50);
- April 29, 1997: change from 24.1 hours to 25.1 hours at $200 per hour, (an addition of $200).
The net adjustment is a further reduction of $1849.25.
4. Boileau and Associates' Account and the Mangione Account
[62] Boileau and Associates did the original engineering work, in early 1989, on the roads in the subdivision, at a cost of approximately $54,000. The Mangione firm was retained from 1994 until 1997, at a cost of approximately $30,000. The two studies, at a combined cost of $84,000, led to testimony by 3 witnesses over 7 days. Defendant submitted that, taken together, the cost was unreasonable for the presentation of this case, and it was not necessary to have independent studies. It was submitted that where both firms were working over the same period, the accounts of either one or the other should be reduced. The overlap is greatest in May, 1995: a review of the time spent by both firms shows a total of 242 hours in the month.
[63] Defendant referred to the trial transcripts to support the contention that the Mangione report was not necessary. In defendant's submission, the engineer Gravelle had done some of the same work in 1988, attesting to the same information, and this amounted to a duplication of services. A review of the two reports showed that much of the same ground was covered, only 9 pages dealt with the disputed potential for development of 6 of the lots, which was the new issue. Further, it was submitted that as the first engineer was well qualified it was not necessary to also require the services of Mr. Mangione.
[64] Defendant also questioned the following
- why support services were billed separately, rather than being a part of overhead;
- inadequacies in describing services, inadequate supporting documents, and illegible time sheets;
- the amount of time billed during trial;
- services during and after the defendant's expert testimony, and during the Prud'homme testimony;
- the practice of billing double the firm cost for support staff;
- an account with a different job number;
- a comparison of the reports produced by the Mangione firm in this case and in Weber.
[65] Plaintiffs outlined which services had been performed by which firm, and explained that there had been no duplication. While both worked on the file concurrently, one studied road grade, and the other road curve, width, and construction material. The experts were used partly to give their views, and partly to advise on the evidence of defendant's experts. The development of the six lots was a new and substantial issue, it was raised by defendant, and it did not duplicate earlier work. Plaintiffs agreed with the deletion of an entry that was included by mistake (a deletion of $7.88 including taxes).
[66] While the invoices are clear, the copies of the time sheets are lacking in detail and some are illegible. In assessing the work performed, I have considered the expert report, the transcript of testimony, times spent and rates, and the explanations of counsel. It is my opinion that, despite the inadequacies of supporting material, the invoices amount to an accurate account. With the exception of the mathematical error on the September 13 invoice (a reduction of $1080, which is not disputed by plaintiffs), I accept this account as claimed.
The Costs of the Taxation
[67] The parties filed written submissions on the costs for preparation and attendance at the taxation and related disbursements. In view of the volume and detail of the accounts, and the amount of time I have spent in reviewing them, I do not feel I should impose any reduction of the time for preparation of the bill. Defendant has submitted that it was not reasonably necessary to have a second lawyer in attendance, and that the issues could have been easily handled by someone of Mr. Burrows`experience. I agree with this in principle, although during the taxation that there were several instances in which Mr. Champagne`s presence was helpful. I will allow Mr. Champagne 8 hours of attendance, a reduction of 11.7 hours. The hourly rates for both Mr. Burrows and Mr. Champagne are reduced as determined above.
[68] Plaintiffs have asked for the costs of Roy & Associates on the taxation. The record and submissions were adequate for the assessment of this appraiser`s account. It was not necessary for Mr. Roy to testify at the taxation, although he was available to do so if required. I consider his preparatory work to be more appropriately a matter of overhead, and although his attendance at the taxation was not necessary, there were some instances in which it was helpful to plaintiffs to have Mr. Roy`s clarification of factual issues. I allow the amount of $500 for his attendance, a reduction of $4569.66.
[69] Summary - Amounts taxed off and allowed:
Fees
Beaudry Bertrand - taxed off $117 + tax $13.58 = $130.58
Nelligan Powers - taxed off fees $53,721.25, GST $3760.48
students / law clerks - taxed off fees $1027.60, GST $71.93
total fees taxed off: $54,865.85
total GST and other tax taxed off $3,845.99
Disbursements taxed off
Photocopying - $1,235.92
Fee to Registry - $15,675
Total allowed = $465,283.38 - $75,622.76 = $389,660.62
Disbursements to Professional Services
Pigeon Roy - taxed off $5,049.25; GST $353.44
Mangione - taxed off $7.88 and $1,080, GST $75.60
-------------
total disbursement professional services
taxed off $6566.17; allowed $265,183.31
Costs of the Taxation
Mr. Burrows - taxed off $50 per hour for preparation and attendance (38.05 hours x $50 = $1902; GST= $133.14)
Mr. Champagne - taxed off $25 per hour and 8 hours attendance; allow 16.1 hours preparation, 8 hours attendance at $140 = 3374; GST $236.18. Amount taxed off = $2533; GST=$177.31.
Summary of reductions in fees - costs of the Taxation:
Fees $1902 + $2533 = $4435; GST $133.14 + $236.18 + $177.31 = $546.63
Disbursements - appraisal - tax off $4569.66.
Total reduction - costs of the Taxation : $4435 + $546.63 + 4569.66 = $9551.29.
Amount allowed = $28,660.81 - $9551.29 = $19,109.52
"W. Wendt"
Taxing Officer
Ottawa, Ontario
December 2, 1997
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
COURT FILE NO.: T-1160-90
BETWEEN:
| C & B VACATION PROPERTIES and |
CORPORATION DROVELLE LTÉE.
Plaintiffs
| - and - |
| HER MAJESTY THE QUEEN |
| Defendant |
PLACE OF TAXATION: Ottawa, Ontario
DATE OF TAXATION: September 24, 25, 26, 29, 1997
TAXATION OF COSTS - REASONS BY W. WENDT, TAXING OFFICER
DATE OF REASONS: December 2, 1997
APPEARANCES:
Mr. William Burrows, Q.C.
| Mr. Pierre Champagne for the Plaintiffs |
Ms. Sylvie Roussel for the Defendant
SOLICITORS OF RECORD:
NELLIGAN - POWER
Ottawa, Ontario for the Plaintiffs
NOËL, BERTHIAUME
Hull, Quebec for the Defendant