Action in rem against the Ship F.V. "SILVER DOLPHIN"
and in personam against the OWNERS, CHARTERS,
AND ALL OTHERS INTERESTED IN THE SHIP
"SILVER DOLPHIN"
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
Plaintiff
and
THE SHIP F.V. "SILVER DOLPHIN", THE OWNERS
AND ALL OTHERS INTERESTED IN THE SHIP F.V.
"SILVER DOLPHIN" AND BRANDEN FISHERIES LIMITED
First Defendant
DENNIS J. RYAN
Second Defendant
ASSESSMENT OF COSTS - REASONS
Willa Doyle
Assessment Officer
[1] These reasons encompass two Bills of Costs presented for assessment by the solicitor for the Plaintiff, Business Development Bank of Canada hereafter ("BDC"). The two Bills of Costs follow the July 20, 2005 Order of the Honourable Mr. Justice Martineau regarding the Plaintiff's motion which was heard in Halifax on July 14, 2005 wherein the Plaintiff sought both a determination and a direction from the Court with regard to the sale of the vessel.
[2] On July 26, 2005, Deborah L. J. Hutchings, counsel for the Plaintiff, forwarded two Bill of Costs to the Defendant in relation to the July 20, 2005 Order issued by the Honourable Mr. Justice Phelan . On September 7, 2005, Ms. Hutchings again sought the Defendant's consent in regard to payment of the Plaintiff's two Bills of Costs.
[3] On October 12, 2005, Ms. Hutchings filed the two Bills of Costs on behalf of the Plaintiff with the Federal Court in Fredericton together with a request that they be dealt with by way of written submissions. I issued a timetable for submissions, supporting materials, reply and rebuttal.
[4] On October 28, 2005, counsel for the Plaintiff requested an extension of time to serve and file the documents in support of the Bills of Costs. A one week extension of time was granted thereby changing the submission date to November 7, 2005. Following that Mr. John Sinnott, Q.C., counsel for the Defendants, was advised of the request and my direction. Accordingly, the date for Mr. Sinnott's reply was extended by one additional week to November 21, 2005 and the Plaintiff's rebuttal date was extended by one additional week to November 28, 2005. Both counsel provided their materials within the revised timelines. Documentation from counsel was produced encompassing both Bills of Costs. In these reasons, I will address the two Bills of Costs separately, as filed.
[5] I will begin with the Plaintiff's Bill of Costs relating to the July 14, 2005 hearing in Halifax before the Honourable Mr. Justice Martineau presented at $2,742.00.
Item 5 - Preparation and filing of a contested motion, including materials
[6] The Plaintiff is seeking seven units: the allowable range for Column III on this item is three - seven. Mr. Sinnott, Q.C. in his submissions replied:
"a. The Defendants note the maximum number of units, 7, is claimed on Item 5."
Ms. Hutchings argued that the motion involved a number of issues which were complex in nature including: whether the Marshal's commission should be reduced, whether BDC was able to obtain costs in relation to all of the motions respecting the sale of the Vessel and whether those costs could be recovered by BDC from the proceeds of the sale of the Vessel already paid into Court. Ms. Hutchings noted that the issues, being complex, required preparation of in-depth written argument bringing forth relevant case law to each of the respective issues. It is my opinion, that based on the volume and scope of the material prepared and presented on this motion, the higher unit value is merited, seven units are allowed.
Item 6 - Appearance on a motion
[7] The Plaintiff is seeking one unit per hour. This item, not contested, is allowed.
Item 13 - Preparation for hearing
[8] The Plaintiff is seeking three units. Referring to Tariff B of the Federal Courts Rules we see that item 13 is found under the subheading "D. Pre-Trial and Pre-Hearing Procedures" and not under the subheading "B. Motions", under which item 5 is found. It is my opinion, that item 5 and item 13 cannot both be compensated - no units are allowed for item 13.
Item 15 - Preparation and filing of written argument
[9] The Plaintiff is seeking five units. Again, referring to Tariff B of the Federal Courts Rules we see that item 15 is found under the subheading "E. Trial or Hearing" and not under the subheading "B. Motions", under which item 5 is found. It is my opinion, that item 5 and item 15 cannot both be compensated - no units are allowed for item 15.
Item 25 - Services after judgment
[10] The Plaintiff is seeking one unit. This item not contested, is allowed.
[11] On the Bill of Costs the following figures are claimed: "Total fees = $2,040.00, HST (15%) = $306.00, Total $2,346.00." Based on my reasoning in the preceding paragraphs, I amend these figures to now read:" Total fees = $1,080.00, HST (15%) = $162.00, Total $1,242.00".
Disbursements
[12] The Plaintiff is requesting a disbursement of $702.00 for photocopies based on an entry claiming "photocopies 351x 5 = 1,755 x .40/copy". Mr. Sinnott, Q.C. replies:
"b. The Defendant also notes photocopies at $0.40 per page which appears excessive." It is common practice that most assessment officers, absent any invoice substantiating an actual cost paid for the copies, will allow up to $0.25 per copy for the photocopies necessary for litigation. The claim for photocopies is reduced and allowed at $438.75.
[13] The Bill of Costs presented at $2,742.00 is assessed and allowed in the amount of $1,680.75 which includes assessable services, disbursements and applicable HST (Harmonized Sales Tax), known also in other jurisdictions as GST (Goods and Services Tax). Following assessment a certificate is issued for $1,680.75.
[14] I will now deal with the Plaintiff's Bill of Costs presented at $63,177.92. In this Bill of Costs the Plaintiff is requesting assessable services and disbursements encompassing four motions before the Court: the December 10, 2004 motion heard before the Honourable Mr. Justice Phelan in Halifax on December 15, 2004 for sale of the vessel (costs granted in the Order); the January 13, 2005 motion before the Honourable Madam Justice Tremblay-Lamer without personal appearance for an order for confidentiality of the appraised value of the Defendant Vessel as contained in material filed (which was silent as to costs in the Order dated January 26, 2005 but for which costs were awarded in the July 20, 2005 Order of the Honourable Mr. Justice Martineau); a further January 13, 2005 motion before the Honourable Madam Justice Tremblay-Lamer without personal appearance for an Order rejecting the offer dated January 3, 2005 and an Order for the sale of the Vessel by way of private contract (with costs granted in the Order); and the March 23, 2005 motion before Madam Prothonotary Aronovitch without personal appearance for an Order approving the sale of the Vessel (which was silent as to costs but for which costs were awarded in the July 20, 2005 Order of the Honourable Mr. Justice Martineau). Relative to this Bill of Costs which encompasses the four motions described above, and to prevent repetition, I will proceed by grouping each of the fee items claimed by item number.
Item 5 - preparation and filing of a contested motion including materials
[15] The Plaintiff is requesting seven units, seven units, six units and seven units respectively and remarked that considerable time was expended in preparing the motions and supporting affidavits. Mr. Sinnott, QC replied that three of the four motions were uncontested. I reviewed the motion documents and the subsequent recorded entries for each motion. It appears that in deed no documentation was filed in opposition to neither of the two January 13, 2005 motions nor to the March 23, 2005 motion before the Court. No units can be allowed for these motions as they were uncontested and consent to each was given to the Court. In regard to the one contested motion I award five units as I do not believe that the higher unit value is justified. No award is allowed for the Plaintiff's three motions that were before the Court and dealt with in writing on consent by the Defendants.
Item 13 Preparation for hearing
[16] The Plaintiff is requesting three units, three units, three units and three units respectively. I refer to my position in paragraph [8] of these reasons and for the same rationale deny this item for each of the four motions. No units are allowed for this item.
Item 6 - Appearance on motion
[17] The Plaintiff is requesting one unit for one hour respectively on each of the first three motions. As previously stated, I did review the recorded entries for this file. Only the first motion (before the Honourable Mr. Justice Phelan on December 15, 2004) was with personal appearance. According to the entry the hearing lasted 25 minutes (10:30 a.m.-10:55 a.m.) One unit, not contested by the defendant, will be allowed. The unit entries for the second and third motion are denied since the motions were dealt with in writing on consent with no personal appearance.
Item 15 - Preparation and filing of written argument
[18] The Plaintiff is requesting five units, five units, four units and three units respectively
I refer to my position in paragraph [9] of these reasons and deny this item for each of the four motions. No units are allowed.
Item 25 - Services after judgment
[19] The Plaintiff is requesting one unit each for each of the four motions. Counsel for the Defendant disputed the amounts claimed in each instance. However, it is common practice for assessment officers to allow one unit for this item since it is understood that lawyers do advise and talk over judgments of the Court with their clients. One unit is allowed for each of the four motions.
[20] On this Bill of Costs the following figures are claimed: "Total fees = $7,560.00, HST (15%) = $1,134.00, Total $8,694.00." Based on my reasoning in the preceding paragraphs, I amend these figures to now read:" Total fees = $1,200.00, HST (15%) = $ 180.00, Total $1,380.00".
Disbursements
[21] The Plaintiff is requesting a disbursement of $996.80 for photocopies based on four motions totaling 2,492 x $0.40 per copy. The Defendant disputed this item. Again, in referencing the reasoning in paragraph [12] and absent any invoice substantiating an actual cost paid for the copies, the claim for photocopies is reduced and allowed at $623.00.
[22] In relation to the further disbursements I will deal only with challenged items. The Defendant disputed the Commission for $18,975.00 to TriNav Consultants Inc. and argued that there was no breakdown of what amount of hours, ..., were involved and there was no backup of any sort for the bill. The Plaintiff's rebuttal submissions stated that the appointment of TriNav Consultants Inc. was approved by Order of Madam Justice Tremblay-Lamer dated January 26, 2005 on the terms of the Engagement Letter attached to the said Order as Appendix A. Additionally, a copy of an invoice as exhibit "D" to the affidavit in support of the disbursements was provided. Based on the foregoing, the disbursement of $18,975.00 is allowed.
[23] The Defendant disputed the Department of Labour Search stating it should be $25.00 not $50.00. The Plaintiff's rebuttal material concluded the Department of Labour search should be $28.75 in accordance with Exhibit "L" of the affidavit in support of disbursements. This disbursement is allowed at $28.75.
[24] The Defendant disputed the $575.00 from TriNav for the second appraisal. The Plaintiff's rebuttal submissions stated that the second appraisal was necessary and the conduct of the second appraisal was approved by Order of Mr. Justice Phelan in his Order of December 15, 2005. A copy of the invoice for the $575.00 is provided as exhibit "O" to the affidavit in support of the disbursements. This disbursement for $575.00 is allowed.
[25] The Defendant disputed the fee of $5,244.00 from Dawe's Welding for removal of the vessel from the water for storage. In the Plaintiff's rebuttal material Ms. Hutchings remarked that the request to have the vessel taken out of the water was stated in the motion before Madam Justice Tremblay-Lamer on January 26, 2005. Also, that the Defendants consented to the motion and that by Order of January 26,2005 Madam Justice Tremblay-Lamer ordered the Vessel be removed from the water. A copy of the invoice is provided as exhibit "Q" to the affidavit in support of the disbursements. The disbursement for $5,244.00 is allowed.
[26] The Defendant disputed the fee of $7,769.95 claimed for a Marine Survey and Appraisal by MSI Limited. The Plaintiff submits that the request for this further appraisal was stated in the motion before Madam Justice Tremblay-Lamer on January 26, 2005. Also, that the Defendants consented to the motion and that by Order of January 26,2005 Madam Justice Tremblay-Lamer ordered the further appraisal of the vessel. A copy of the invoice is provided as exhibit "R" to the affidavit in support of the disbursements. The disbursement for $7,769.95 is allowed.
[27] The Defendant disputed the storage fees of $833.13 and $2,328.75 charged by Dawe's Welding stating it was unnecessary to take the vessel from the water and it was unnecessary to incur storage expenses. In this regard, the Plaintiff has provided copies of the expenses incurred providing details of the storage times as exhibit "S" to the affidavit in support of the disbursements. In my opinion, based on the fact that the Defendants consented to the motion relating to the Order of January 26,2005 where Madam Justice Tremblay-Lamer ordered the Vessel to be removed from the water these disbursements are reasonable and are allowed at $833.13 and $2, 328.75.
[28] On the Bill of Costs the following figures are claimed: "Total disbursements = $54,483.92, Total fees and disbursements = $63,177.92." Based on my reasoning in the preceding paragraphs, I amend these figures to now read:" Total disbursements $54,088.87, Total fees and disbursements = $55,468.87."
[29] The Bill of Costs presented at $63,177.92 is assessed and allowed in the amount of $55,468.87. Following assessment a certificate is issued for $55,468.87.
"Willa Doyle"
Willa Doyle
Assessment Officer
Fredericton, New Brunswick
January 12 , 2006
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1645-04
STYLE OF CAUSE: BUSINESS DEVELOPMENT BANK OF CANADA -and- THE SHIP F.V."SILVER DOLPHIN", THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP F.V."SILVER DOLPHIN", AND BRANDEN FISHERIES LIMITED - and- DENNIS J. RYAN
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: Willa Doyle, Assessment Officer
PLACE OF TAXATION: Fredericton, New Brunswick
DATED: January 12, 2006
SOLICITORS OF RECORD:
McInnes Cooper FOR THE PLAINTIFF
St. John's, NL
Lewis, Sinnott, Shortall, Hurley FOR THE DEFENDANTS
St. John's. NL