Date: 19980604
Docket: T-3480-90
BETWEEN:
PARDEE EQUIPMENT LIMITED,
Plaintiff,
- and -
HER MAJESTY THE QUEEN
Defendant,
ASSESSMENT OF COSTS - REASONS
GERALD PARLEE,
ASSESSMENT OFFICER
1� A party and party bill of costs in this matter was presented before me in Edmonton, Alberta, May 11, 1998, when Mr. Kerry Boyd represented the plaintiff and Mr. David Penton, the respondent. The supporting affidavit of Tammy Duff had been filed April 15, 1998.
2� Upon application by the plaintiff, Madame Justice Barbara Reed gave the following directions to the taxing officer dated February 17, 1998:
THIS COURT ORDERS that I have not been persuaded that a lump sum award of costs is appropriate in this case. While the case involved a large sum of money and was relatively complex, I cannot find that it was sufficiently complex to justify a blanket column IV or column V award. I am persuaded that the plaintiff's costs should be assessed, with one exception, at the top end of column III, and that they should include an amount payable for the second counsel. The one exception to column III assessment is documentary discovery. It should be taxed at the top end of column V. Insofar as disbursements are concerned, I decline to reduce the amount payable with respect to Mr. Grace's report because the initial report he submitted was, in part, inadmissible. The taxing officer is directed to tax the plaintiff's bill of costs in accordance with the above.
3� Counsel consented to the bill as presented with the exception of five issues under disbursements.
1. Witness Fees - Mr. Gord Knebel - $3,650.00
2. Witness Fees - Mr. Garry Acheson - $10,432.50
The Plaintiff explained that, although he did not testify, Mr. Knebel was briefed and on standby for the trial as a potential rebuttal witness in the event that Mr. Henry Leszczynski was called by the Crown. Exhibit G to the affidavit of disbursements reflects the charges considered relevant in accordance with Tariff A 3(3) which refers to "the expense or any loss incurred by the witness in attending a proceeding". (Emphasis mine)
The Crown made three submissions concerning the witness Mr. Knebel:
(1) Mr. Penton cited the Honourable Mr. Justice Walsh in Canadian Titanium Pigments Ltd. v. Fratelli D'Amico Armatori, T-4548-73, 19 December 1979 (F.C.T.D.) at p. 4 supporting counsel's view that a potential witness for the plaintiff who was not called at trial could not be assessed as a witness under Tariff A.
(2) Reference was made to Exhibit F, Mr. Knebel's invoice, which was a bill, including preparation time, for the period January 23, 1996 to April 30, 1997. Counsel referred again to Canadian Titanium (supra) at p. 5:
"... Section 5 of Tariff A, however, which provides that no payment shall be made to a witness for what he has done in preparing himself to give evidence except as permitted by the Tariff, and in any event services performed in preparation for giving evidence are only allowed to expert witnesses."
(3) Mr. Penton also said there should be more evidence as to the witness's actual loss.
4� At this point Mr. Penton commented that although the witness, Mr. Acheson, did testify, the same three submissions apply and compensation should only be for his time attending court as a witness.
5� Mr. Boyd confirmed that Mr. Acheson, who was the primary accountant, testified on the first day and was asked to remain on standby in the event he would be needed to rebut Mr. Leszczynski. Exhibit H is the invoice to compensate for amounts lost as a result of having to prepare and attend at trial based on his normal hourly rate.
[6] Mr. Penton's concluding submission was for the allowance of a maximum of four days attendance with no preparation time.
[7] To address the Crown's submissions, I read the current Tariff A regarding witnesses which is set out below for convenience of reference.
WITNESSES
3. (1) Subject to subsection (2), a witness is entitled to be paid by the party who arranged for or subpoenaed his or her attendance $20 per day plus reasonable travel expenses, or the amount permitted in similar circumstances in the superior court of the province where the witness appears, whichever is the greater.
(2) Where a witness, other than a party, is an expert witness, the daily rate referred to in subsection (1) shall be $100.
(3) A party may pay a witness, in lieu of the amount to which the witness is entitled under subsection (1) or (2), a greater amount equal to the expense or any loss incurred by the witness in attending a proceeding.
(4) In lieu of the amounts to which an expert witness is entitled under subsections (1) and (2), a party may pay the expert witness a greater amount established by contract for his or her services in preparing to give evidence and giving evidence.
[8] Since the restriction found in Section 5 of the former Tariff A referred to in Canadian Titanium (Supra) has not been included in the present Tariff A, I agree with Plaintiff's submission that costs under Section 3(3) of the present Tariff A (any loss) may include preparation time for a witness under either subsection (1) or (2).
[9] I contend that since it was reasonable to expect the Crown to lead certain evidence involving Mr. Henry Leszczynski, Plaintiff was obligated to his client to prepare rebuttal for these potential issues. Whether or not the witness was eventually called, it was essential and reasonable to be prepared.
[10] Although the evidence on the invoices is less than perfect, in that a daily rate or specific hours billed are unavailable, I can conceive that in Mr. Acheson's case for instance, 30 hours court time could require 30 hours preparation time which would produce an hourly rate of $9,750 ) 60 = $160.00. Therefore, I accept this to be a reasonable charge for a chartered accountant in this situation. Both the invoice for Mr. Knebel and Mr. Acheson are acceptable to me and allowed at $3,650.00 and $10,432.50 ($9,750 + $682.50 GST) respectively.
3. Court Reporter Fees - $4,674.57
[11] Mr. Boyd explained that one day of expedited hearing was ordered but three days were provided in error. The submission therefore is for the $730.00 (one day) in this matter and the balance would be submitted after the appeal. An expedited transcript was considered necessary due to the large amount ($4 million) involved in the case.
[12] Mr. Penton referred to Leithser v. Pengo Hydra Pull of Canada Ltd. T-1738-71, December 10, 1973, (F.C.T.D.) at p. 5 wherein the Honourable Mr. Justice Heald disallowed daily trial transcript as a luxury that should not be paid for by the opposing party. Respondent also asserted that the Crown should not pay for something not intended such as the extra two days of daily transcript; that the most paid should be for one day; and even that should be submitted after the appeal. I agree that this disbursement, whether in total or in part, belongs more appropriately in the Assessment of Costs after appeal and therefore I disallow $4,674.57.
4. Photocopy Charges - $6,343.76
[13] Plaintiff referred to computer print-outs as evidence for the cost of photocopies for this case. The date and total cost of each photocopy session is clear but there is no indication as to which documents were copied or of their need. Citing Maloney v. Canada, 1989, 1 C.T.C. 213; (1989), 89 D.T.C. 5099; (1989) 23 C.P.R. (3d) 129; [1989] 24 F.T.R. 283 (T.D.), Mr. Boyd submitted that $.25 is an appropriate rate per copy. Mr. Boyd also referred to the order of the Honourable Madame Justice Reed where documentary discovery was ordered taxed at the top end of column V; in his view, reflecting that there were many exhibits, voluminous evidence, extensive research and many cases to be copied. Counsel submitted that, considering the $4 million settlement, $6,000 was not an unreasonable cost for photocopies.
[14] Respondent agreed the plaintiff should "get something" for photocopies and cited Melo's Food Centre Ltd. v. Borges Food Ltd., T-916-89, August 8, 1996, (F.C.T.D.) at page 20 where the Taxing Officer set about to painstakingly relate each photocopy that appeared in the computer print out with particular events. While not suggesting that I proceed in this fashion, counsel submitted that a reduction was appropriate given that evidence of the actual cost was not obvious and that some outside copies shown on the printout may have cost less than $.25. At page 20 of Melo's Food (supra) the Taxing Officer applied the $.09 per page rate charged for some volumes by a print shop outside the law firm to the total number of copies he estimated as being reasonable and necessary.
[15] I consider the $.25 per copy, which is the practice in the Federal Court, Maloney (supra) to be an appropriate rate for photocopies. However, in the absence of evidence of precisely what material was copied to arrive at this total cost of $6,343.76, I grant that a few outside copies may have been at a lower rate and that some were for the plaintiff's use and not essential to the critical path of litigation. Therefore, I allow 80% of the total cost submitted or $5,075.00.
5. Quick Law - $336.98
Search charges - $62.21
[16] Mr. Boyd presented Quick Law and search charges in the computer printout citing All Canada Vac Ltd. v. Lindsay Manufacturing Inc., [1992] 2 F.C. D-48 (T.D.) where charges were taxed off and United Terminals Ltd. v. M.N.R., [1992] 2 F.C. D-10 (T.D.) in which they were allowed. Again, given the $4 million dollar settlement and the long duration (1990-1997), the plaintiff maintained that the search charges are not unreasonable.
[17] Mr. Penton agreed that cases have been decided for and against such charges. However, in his view, legal research is at the heart of a lawyer's work and seen as part of a lawyer's fee built into overhead. The respondent also cited All Canada Vac Ltd. (supra). I agree with the respondent's submission in this matter and therefore delete the Quick Law and search charges totalling $399.19.
[18] Plaintiff's assessment of costs which was presented at $70,505.17, but with an addition correction to $70,485.17, is assessed and allowed at $64,142.65 for which a Certificate will be issued.
"Gerald Parlee"
Gerald Parlee
Assessment Officer
Ottawa, Ontario
June 4, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
COURT FILE NO.: T-3480-90
BETWEEN: PARDEE EQUIPMENT LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
ASSESSMENT OF COSTS - REASONS BY G. PARLEE, ASSESSMENT OFFICER
PLACE OF ASSESSMENT: Edmonton, Alberta
DATE OF ASSESSMENT: May 11, 1998
DATE OF REASONS: June 4, 1998
APPEARANCES:
Mr. Kerry Boyd for the Plaintiff
Mr. David Penton for the Respondent
SOLICITORS OF RECORD:
Lucas Bowher & White
Barristers & Solicitors
Edmonton, Alberta for the Plaintiff
Deputy Attorney General
of Canada for the Respondent
Date: 19980604
Docket: T-3480-90
BETWEEN:
PARDEE EQUIPMENT LIMITED,
Plaintiff,
- and -
HER MAJESTY THE QUEEN
Defendant,
CERTIFICATE OF ASSESSMENT
I HEREBY CERTIFY that the Bill of Costs of the Plaintiff Pardee Equipment Limited is assessed and allowed in the amount of sixty four thousand, one hundred and forty-two dollars and sixty-five cents ($64,142.65).
DATED AT OTTWA, this 4th day of June, 1998.
"Gerald Parlee"
Gerald Parlee
Assessment Officer