Date: 19980805
Docket: T-1517-97
CANADIAN PACIFIC RAILWAY COMPANY
Plaintiff
- and -
M.L.D. CORPORATE SERVICES LIMITED,
MLD CORPORATE SERVICES (1991) LTD. and
MICHAEL GREEN
Defendants
ASSESSMENT OF COSTS - REASONS
M. LAMY,
ASSESSMENT OFFICER
[1] Further to the order of Mr. Justice Campbell dismissing with costs the Plaintiff's application for interlocutory injunction, the Defendants' bill of costs came on for hearing on July 22, 1998, by teleconference between Montreal and Calgary. Messrs. Marvin A. Segal and Bob H. Sotiriadis appeared on behalf of the Defendants. Mr. Segal, of the firm Gross Pinsky, is the attorney for the Defendants. Mr. Bob Sotiriadis, a lawyer with Léger Robic Richard, is acting as counsel to attorneys for the Defendants. Messrs. Steven H. Leitl and Joseph A. Bradford of the firm MacLeod Dixon acted for the Plaintiff.
FEES
[2] The Defendants are claiming the amount of $18,257.00 for services rendered under the following items of Tariff B:
| Items
2
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| Preparation of statement of facts |
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| 2
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| Preparation of summary of law |
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| 5
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| Preparation and filing of Defendants' motion for fixing a place and time of hearing of the Plaintiff's motion for interlocutory injunction |
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| 5
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| Preparation and filing of Defendants' motion record pursuant to Rule 321.1(4) in response to Plaintiff's motion for interlocutory injunction |
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| 6
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| Appearance on Defendants' motion for fixing a place and time of hearing on: |
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| October 20, 1997 (1 hour) |
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| October 27, 1997 (" hour) |
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| November 3, 1997 (" hour) |
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| 6
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| Conference call with Mr. Justice Hugessen to dismiss the venue of Plaintiff's motion for interlocutory injunction (20 minutes) |
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| 6
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| Appearance on Plaintiff's motion for adjusting the schedule for the completion of the interlocutory proceedings (" hour) |
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| 6
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| Conference call with Mr. Justice Campbell to discuss Defendants' request to adjourn Plaintiff's motion for interlocutory injunction (8 minutes) |
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| 8
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| Preparation for the examinations of: |
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| 9
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| Attending on examinations of: |
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| - Ian Martin (November 20, 1997) Calgary3.5 hours |
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| - Ken Key (November 20, 1997) Calgary4.5 hours |
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| - Ralph Wilson (November 21, 1997) Calgary4.0 hours |
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| - Angela Bernier (December 8, 1997) Montreal3.5 hours |
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| - Michael Speer (December 8, 1997) Montreal1.25 hours |
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| - Michael Green (December 9, 1997) Montreal7.0 hours |
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| 13a)
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| - Preparation for hearing on interlocutory injunction |
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| - Preparation of affidavit by Mr. Segal |
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| - Preparation of affidavit by Mr. Segal |
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| 14a)
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| Marvin Segal, first counsel |
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| 14b)
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| Bob Sotiriadis, second counsel |
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| 24
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| Travel by counsel to attend hearing |
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[3] The Court awarded the costs of the Plaintiff's interlocutory injunction to the Defendants without giving special directions to the assessment officer. As a preliminary remark, I would like to mention that pursuant to Rule 407 of the Federal Court Rules, 1998, (the New Rules) all costs will be assessed in accordance with column III of the Tariff.
[4] At the conclusion of the hearing on the interlocutory injunction, which took place in Calgary on January 26, 1998, Mr. Justice Campbell made the following comments:
| Thank you for your arguments. You did a lot of work on this. You were very well prepared, and the hearing took a lot less time than it would have had you not prepared as much as you had. So I appreciate the work you did. |
|
[5] Considering these remarks, I have no problem to award the maximum number of units set out in column III for items 5 and 6. I agree with counsel for the Plaintiff that costs relating to an interlocutory injunction, in the absence of special directions, can only be assessed under these items. Claims made under items 2, 13 and 14 are invalid. Section A of Tariff B is meant to compensate counsel for services rendered in the preparation and filing of originating documents and other pleadings. The term "pleadings" is defined in Rule 2 of the New Rules as "a document in a proceeding in which a claim is initiated, defined, defended or answered". The Defendants' statement of facts and summary of law cannot be considered as originating documents or pleadings according to the Rules. Sections D and E addressed pre-trial and pre-hearing procedures and services rendered at trial and hearing. The term "hearing" does not cover all types of hearing but only those that are decisive of a case such as a hearing of a judicial review application.
[6] Therefore, 7 units are allowed under item 5 to the Defendants for the preparation of their motion record filed pursuant to Rule 321.1 of the Federal Court Rules, C.R.C. c. 663 (the Old Rules). It would be unfair to limit the applicability of this item to the party preparing and filing the interlocutory injunction application when in instance the Defendants had no choice but to comply with the Rules. Mr. Segal is allowed 6 units under item 6 (3 units x 2 hours) for his appearance at the hearing of the interlocutory injunction. No fees can be allocated for second counsel as Mr. Justice Campbell's order is silent to that effect. All other services claimed under items 5 and 6 are refused since the orders rendered on these various motions do not cover the issue of costs.
[7] Six examinations on affidavits took place in this file: Plaintiff's affidavits (Messrs. Key, Martin, Wilson and Speer) and Defendants' affidavits (Mrs. Bernier and Mr. Green).
At taxation, counsel for the Plaintiff argued that under item 8, the maximum allocation of units for preparations relating to examinations under column III is 5 units. After hearing both parties on this issue, I think that counsel for the Defendants is entitled to recover fees for his preparation to attend each examination. Item 8 reads "preparation for an examination" and not "preparation for examinations". I am ready to allow 12 units for the preparations of the examinations of Messrs. Key, Wilson and Martin and 6 units for the preparation of the examination of the fourth affiant of the Plaintiff and the two Defendants' affiants. Considering that many examinations took place in this file, I am of the opinion that an allocation of 18 units under this item is reasonable for both parties.
[8] A total per hour attendance on examinations of 23.75 hours is claimed under item 9. According to the evidence submitted by the Defendants, the examinations in Calgary of Messrs. Martin, Key and Wilson required more expertise than for the examination in Montreal of Mr. Speer, the fourth affiant of the Plaintiff. Counsel is also claiming less units for his attendance at the examinations of Mrs. Bernier and Mr. Green, both of whom swore affidavits on behalf of the Defendants. For these reasons, I allow 2 units/hour under column III for the examinations of Messrs. Martin, Key and Wilson, and 1 unit/hour for the examinations of Mrs. Bernier, Messrs. Green and Speer for a total of 35.75 units.
[9] As mentioned at taxation, no fees are allowed under item 24 for travel by counsel to attend the hearing of the interlocutory injunction in Calgary as the Court's order gives no direction to that effect.
[10] Item 26 is taxed as requested.
DISBURSEMENTS
[11] At taxation, counsel for the Plaintiff submitted that the disbursements claimed in the amount of $21,196.63 on this interlocutory injunction application are not reasonable in regard to a trial that is ongoing. He argued that his client should not be kept responsible for the expenses incurred by Mr. Sotiriadis as second counsel and Mr. Green, party defendant. The latter attended both the examinations on affidavit of Messrs. Martin, Key and Wilson and the actual hearing on the interlocutory injunction in Calgary.
[12] Although Mr. Green, as a party, was entitled to be present, I have not been convinced that his presence during these examinations nor at the hearing was essential. His consent to make undertakings could have been obtained in an other way. As to the travel expenses of a second counsel, they are not allowed. Mr. Justice Campbell's order does not give me the authority to assess fees and disbursements incurred by a second counsel.
[13] On the other hand, I consider that the expenses paid by the Defendants for photocopying and binding, long distance telephone and fax charges, stenographic fees and courier charges are entirely recoverable. This is a voluminous file and I am satisfied with the evidence submitted by Defendants establishing that these disbursements were incurred only in the context of the interlocutory injunction application. With respect to taxi charges, they are refused as I consider them more like operating expenses.
[14] In light of the above, the Defendants' disbursements are as follows:
| - photocopying and binding $1,906.25 |
| - long distance telephone $39.86 |
| - stenographic fees $3,426.21 |
| - airfare to Calgary for examinations (Mr. Segal) $2,290.15 |
| - airfare to Calgary for interlocutory injunction (Mr. Segal) $2,693.48 |
| - airport improvement fees $20.00 |
| - hotel accommodation in Calgary $636.50 |
| November 1997 and January 1998 (Mr. Segal) ___________ |
TOTAL: $12,008.26
The Defendants' bill of costs is assessed in the amount of $20,376.33 i.e. $8,368.07 for fees ($7275 x GST x PST) and $12,008.26 for disbursements. A certificate in the amount of $20,376.33 is issued.
MONTREAL, QUEBEC ___________________
August 5, 1998 Michelle Lamy
Assessment Officer