Date: 20010430
Neutral citation: 2001 FCT 410
BETWEEN:
INVERHURON & DISTRICT
RATEPAYERS' ASSOCIATION
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE ATOMIC ENERGY CONTROL BOARD, and
ONTARIO POWER GENERATION INCORPORATED
Respondents
ASSESSMENT OF COSTS - REASONS
ASSESSMENT OFFICER
[1] This is an assessment of the Bills of Costs submitted on behalf of the Respondents Ontario Power Generation Inc. (hereinafter "OPGI") and the Minister of the Environment, the Minister of Fisheries and Oceans and the Atomic Energy Control Board (hereinafter the "Federal Respondents") pursuant to Orders of the Court dated January 6, 2000, May 23, 2000 and July 13, 2000.
[2] On January 6, 2000, the Court rendered an Order dismissing the Applicant Inverhuron & District Ratepayers' Association's (hereinafter "the Applicant") motion for leave to file a supplementary affidavit with respect to the judicial review application. The Order further provided that the question of costs would be addressed in the context of the costs of the judicial review application.
[3] On May 23, 2000, the application for judicial review was dismissed with costs to be assessed.
[4] In the July 13, 2000 order, the Court addressed the costs of the motion that were deferred by the Order dated January 6, 2000, and awarded costs to the Respondents under column 5 of Tariff B, including Item 24 of Tariff B as well as reasonable travel costs.
[5] This matter was originally brought to the Court under the cover of an application for judicial review pursuant to s. 18 of the Federal Court Act with respect to the course of action taken by the Federal Respondents under the Canadian Environmental Assessment Act regarding the comprehensive study of the proposed Bruce Used Fuel Dry Storage Facility project. OPGI was added as a party to this application on July 23, 1999 by an Order of Prothonotary Roger R. Lafrenière.
[6] At the commencement of this assessment, counsel for the Applicant raised an objection to the assessments of the two Bills of Costs on the basis of prematurity. He raised concerns with respect to judicial economy and the public interest, i.e., the status of the Applicant being a non-profit organization made up of a group of families and individuals. He argued that there was still a multiplicity of issues which had not to date been finalized. Furthermore, he added that the assessment of costs may cause prejudice to the Applicant who will have to raise funds, and also suggested that in this respect, a motion for stay might be necessary.
[7] In support of his argument, counsel for the Applicant relies on the decision of Taxing Officer Stinson in Casden v. Cooper Enterprises Ltd., [1991] 3 F.C. 281 and on the decision in ITV Technologies Inc. v. WIC Television Ltd, [2000] F.C.J. No. 67 (QL) (T.D.), where Mr. Stinson distinguished Casden, supra, and proceeded to assess the costs of a motion under appeal, where the costs had been awarded on the basis of payment forthwith.
[8] Counsel for the Applicant also referred to the decision in Zündel v. Canada (Canadian Human Rights Commission), [1999] F.C.J. No. 1239 (QL) (T.D.), where Assessment Officer Smith declined to proceed with the assessment of costs on an interlocutory matter.
[9] On the meaning of the word "interlocutory", Casden, supra, was again refered to where Assessment Officer Stinson reviewed the authorities for the terms "final" and "interlocutory" to finally conclude that:
With all due respect to the authority carried by a judgment of the Trial Division, I cannot conclude that said authority should supersede or vary the established and, in my view, practical principle that one taxation of costs should occur in relation to the cause of an action. That is, the Taxing Officer should have, in assessing accounts, the benefit of the final (by that, I mean that decision not subject to any further appeal) conclusion on the substantive issues generated by the action.
[10] The decision by Noël J. in Smith and Nephew Inc. v. Glen Oak Inc., [1995] F.C.J. No. 1604 (QL) (T.D.) was also cited. At paragraph 6 of said decision, the learned judge concluded as follows:
... it would not be appropriate for the Court to endeavour to fix the costs at this juncture of the proceedings. An appeal is pending from one of the two orders and, as is apparent from the material submitted by the plaintiff, the costs involved in both matters are intertwined. That in itself is reason enough for not fixing the costs at this stage, and for that reason I decline to do so.
[11] The decision by Rothstein J., as he then was, in AIC Ltd. v. Infinity Investment Counsel Ltd. 148 F.T.R. 240 and the decision of Blais J. in this same file, 163 F.T.R. 285 were referred to regarding the "forthwith" issue.
[12] In summary, the Applicant's position on the preliminary objection is that the assessment of costs should not proceed before the appeals related to this file are disposed of.
[13] In response to the Applicant's objection not to proceed with the assessment at this time, counsel for OPGI argued that the assessment should proceed. He supported that position by stating that, for it not to proceed, the assessment officer would, in fact, have to order a stay, for which he or she does not have any jurisdiction. He further stated that the filing of the appeals relating to this proceeding is not a sufficient reason to defer the assessment.
[14] With regards to the Applicant's argument on public interest and the status of the Applicant, counsel for OPGI mentioned that Justice Pelletier already dealt with that issue in this file and rejected that argument.
[15] Counsel for OPGI also referred to Justice Linden's decision in Canadian Environmental Law Associate v. Canada (Minister of the Environment), [2000] F.C.J. No. 821 (QL) (C.A.) and to Justice Martin's decision in Rural Dignity of Canada v. Canada Post Corporation 40 F.T.R. 255, the latter stating:
He then argued that the costs should not be awarded against the applicants in the event that they were not successful because they had acted responsibly and in a cost effective way in bringing the matter to the attention of the Court. He also submitted that to award costs against the applicants in such an event would be contrary to the public interest as it would discourage ordinary citizens such as the applicants in this case from raising such matters before the Court.
...
I do not find counsel's submissions very convincing. The applicants were represented by counsel and presumably informed that one of the consequences of losing an action would be that costs might be awarded against them. In my view this is a risk normal to any litigation and the applicants must be taken to have assumed it. I can see no reason why I should depart from the general rule that costs follow the event and will award costs in this case against the applicants. If a degree of generosity is to be shown it should in this case come from the respondents, who may choose not to enforce the award of costs, but it should not, in the circumstances of this case, come from the Court.
It is to be noted that this decision was maintained by the Court of Appeal.
[16] On the argument of the applicant's inability to pay the costs, counsel for OPGI cited my decision in Légère v. Queen, [1999] 4 C.T.C. 262 wherein I referred to a decision by Gibson's J. in Nike Canada Ltd. v. Jane Doe, [1999] F.C.J. No. 1018 (QL) (T.D.): "_In an award of costs, neither the ability to pay nor the difficulty of collection should be a deciding factor.".
[17] On the issue of prematurity of the assessments and the filing of notices of appeal that could prevent the assessment officer from assessing these bills, counsel for OPGI referred to Justice Rothstein's, as he then was, decision in ACI Ltd., supra, referring to Smith and Nephew Inc., supra:
I do not think it is a case of general application insofar as the awarding of costs is concerned, as the general practice is not to await the outcome of an appeal before costs are dealt with in Trial Division proceedings.
[18] On this point, the decision of Assessment Officer Lamy dated May 12, 1994 in Court File No. T-1707-90 was also referred to, wherein she stated that:
It would undoubtedly have been preferable for the defendant to await the outcome of the appeal before having costs taxed, in order to avoid what may ultimately be pointless proceedings. However, the judgment of the judge of the Trial Division is a final judgment and gives us authority to tax this bill. In so doing, we do not believe that we are going against the principle established, that is, that the cause of action must be the subject of only one taxation of costs.
[19] This decision was upheld by Justice Pinard on June 10, 1994 in Time Data Recorder International Ltd. v. Canada (Minister of National Revenue), [1994] F.C.J. No. 910 (QL) (T.D.):
In my view, absent any order of this Court to the contrary, the taxing officer could grant certification of taxation as she did.
[20] Counsel further referred to Assessment Officer Pace's decision dated July 6, 2000 in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1108 (QL) (T.D.) wherein the issue of prematurity is dealt with at paragraph 6:
I have considered the argument by counsel and reviewed the above mentioned jurisprudence as well as other relevant cases, and in the circumstances of this case, I am of the view that in order for an assessment officer to exercise his/her discretion to defer an assessment of costs awarded by the Court, compelling circumstances would have to exist. While I am not proposing that an outstanding appeal has no bearing or effect on this assessment, I am not, however, convinced that the existence of an appeal, by itself, is sufficient to compel me to defer the assessment.__While I find the plaintiff's argument on this point to be articulate, it is my view that it is the kind of argument that should have been made to the Court on a motion for stay of the order. As an assessment officer, I am not empowered to make such an order. No such stay was ordered nor was one sought. Consequently, what I have before me today is a valid Court order providing for an award of costs to the defendant. And, as the order provides, those costs are to be determined either by way of assessment or through the agreement of the parties. No agreement having been reached, I am bound by the order of the Court to assess costs.
[21] In closing his arguments on the issue of prematurity, counsel for OPGI mentioned that the "forthwith" argument of Rule 401(2) of the Federal Court Rules, 1998 applies only in the context of interlocutory matters. In the case at bar, there has been a judgment issued that decided the substantive issues between the parties, therefore, the action is over at this point. Thus, the Court would not have the need to indicate that the costs were payable forthwith. Justice Pelletier's Order dated May 23, 2000 only mentions "costs to be assessed", this should be interpreted as a clear direction to the assessment officer to assess costs.
[22] While the Applicant's argument on the judicial economy may be convincing, and while I have some concerns with regard to the Applicant's status, the decision I made on October 18, 2000 to hear this assessment remains the same.
[23] I have considered the arguments made by counsel and had the opportunity to review the jurisprudence above-mentioned and, I am of the opinion that Mr. Justice Pelletier's decision made on May 23, 2000 is a final decision which also provided for an award of costs and as an assessment officer, this final decision empowers me to assess the costs as directed by the Court.
[24] Consequently, I will proceed with the assessments of the Bills of Costs as presented.
[25] However, before doing so, counsel at hearing raised issues with respect to public interest and duplication.
[26] While I also have concerns on the public interest issue, the fact remains that the application for judicial review was dismissed with costs by the judge who had all material facts before him. Therefore, it is not for the Assessment Officer to alter the Court's decision, since the Court has a wide discretion in awarding costs. The public interest in this case needs not to be considered by the Assessment Officer in the assessment of costs, since the Court has already dealt with that issue in making its decision to award costs.
[27] The Applicant also brings forth that there is duplication in the costs claimed by the Respondents, stating that many of the requests went on consent and that this case is about federal law and not about OPGI.
[28] I do not agree. The interest of the Federal Respondents and OPGI were not the same. OPGI was the operator of the Facility Project while the Federal Respondents were a federal Board and Ministers. Furthermore, I consider Justice Pelletier's decision of July 13, 2000 speaks for itself in its award of costs to both Respondents.
[29] In assessing the Bills of Costs, I dealt with the bills submitted by OPGI and the Federal Respondents at the same time. And for clarity, I used the following Chart.
|
Item (Tariff B) |
Assessable Service |
Number of Units Allocated to OPGI |
Number of United Allocated to Federal Respondents |
|
2 (OPGI) |
Preparation and filing of Respondent's record and material, including notice of appearance and affidavit of Kurt Johansen. |
7 |
|
|
2 (FEDS) |
Preparation and filing of Respondent's record and materials, including notice of appearance and affidavits of Dr. Suzana Fraser, Donald Howard, Paul Bernier and Dr. Peter J. Waight. |
7 |
|
|
4 (OPGI) |
Preparation and filing of motion under Rule 369, on consent, for an order adding OPGI as a Respondent. |
0 |
|
|
4 (OPGI) |
Preparation of proposed timetable for consent order (order dated August 13, 1999). |
0 |
|
|
4 (OPGI) |
Motion on behalf of the Power Workers Union for leave to intervene dated August 23, 1999. |
0 |
|
|
4 (OPGI & FEDS) |
Motion by the Applicant for an extension of time for filing reply affidavits, made by letter dated October 17, 1999. |
2 |
2 |
|
4 (OPGI & FEDS) |
Motion by the Applicant for a further extension of time for filing reply affidavits, made by letter dated October 22, 1999. |
2 |
2 |
|
4 (OPGI & FEDS) |
Motion by the Applicant for extension of time to file documents and to allow the Applicant to file a memorandum exceeding 30 pages, dated December 22, 1999. |
2 |
2 |
|
5 (OPGI & FEDS) |
Motion by the Applicant for leave to file the affidavit of Dr. David Hoel and a supplementary memorandum of fact and law, dated December 21, 1999. |
10 |
8 |
|
6 (OPGI & FEDS) |
Appearance before Pelletier J. on January 5, 2000 on Applicant's motion for leave to file the affidavit of Dr. David Hoel and a supplementary memorandum of fact and law. |
8 (2 hours X 4 units) |
6 (2 hours X 3 units) |
|
5 (OPGI & FEDS) |
Motion for directions as to costs, dated June 19, 2000. |
0 |
0 |
|
8 (OPGI & FEDS) |
Preparation for cross-examination of Paul Bernier. |
3 |
3 |
|
9 (OPGI & FEDS) |
Attending on cross-examination on November 2 and 3, 1999. (5.8 hours X 2 units) |
11.6 |
11.6 |
|
8 (OPGI & FEDS) |
Preparation for cross-examination of Normand de la Chevrotière. |
5 |
5 |
|
9 (OPGI & FEDS) |
Attending at and conducting cross-examination on November 8, 1999. (1.8 hours X 3 units) |
5.4 |
5.4 |
|
8 (OPGI & FEDS) |
Preparation for cross-examination of Dr. Gordon Edwards. |
5 |
5 |
|
9 (OPGI & FEDS) |
Attending at and conducting cross-examination on November 21, 1999. (3 hours X 3 units) |
9 |
9 |
|
8 (OPGI & FEDS) |
Preparation of cross-examination of Dr. Suzana Fraser. |
3 |
3 |
|
9 (OPGI & FEDS) |
Attending at cross-examination on November 15, 1999. (3 hours X 2 units) |
6 |
6 |
|
8 (OPGI & FEDS) |
Preparation for cross-examination of Dr. Mark Goldberg. |
5 |
5 |
|
8 (OPGI & FEDS) |
Attending of cross-examination on November 22, 1999. (6 hours X 3 units) |
18 |
18 |
|
8 (OPGI & FEDS) |
Preparation for cross-examination of Donald Howard. |
3 |
3 |
|
9 (OPGI & FEDS) |
Attending at cross-examination on November 10 and 15, 1999. (4.3 hours X 2 units) |
8.6 |
8.6 |
|
8 (OPGI) |
Preparation for cross-examination of Kurt Johansen. |
3 |
|
|
9 (OPGI) |
Attending at cross-examination on November 9 and 16, 1999 (9.1 hours X 2 units) |
18.2 |
|
|
8 (OPGI) |
Preparation for cross-examination of Siegfried Kleinau. |
2 |
|
|
9 (OPGI & FEDS) |
Attending at and conducting cross-examination on November 8, 1999. |
0.6 (0.2 hours X 3 units) |
0.4 (0.2 hours X 2 units) |
|
8 (OPGI) |
Preparation for cross-examination of Terry Pigeau. |
0 |
|
|
9 (OPGI) |
Attending at cross-examination on November 11, 1999. (0.8 hours X 0 units) |
0 |
|
|
8 (OPGI & FEDS) |
Preparation for cross-examination of Dr. Michael Power. |
5 |
5 |
|
9 (OPGI & FEDS) |
Attending at cross-examination on November 5, 1999. (3.7 hours X 3 units) |
11.1 |
11.1 |
|
8 (OPGI & FEDS) |
Preparation for cross-examination of Dr. Peter J. Waight. |
3 |
3 |
|
9 (OPGI & FEDS) |
Attending at cross-examination on November 10, 1999. (2.6 hours X 2 units) |
5.2 |
5.2 |
|
8 (OPGI) |
Preparation for cross-examination of Dr. David Hoel in the event that the Applicant's motion for leave to file the affidavit was successful. |
3 |
|
|
10 (OPGI & FEDS) |
Preparation for case management conference, including proposed timetable. |
3 |
3 |
|
11 (OPGI & FEDS) |
Attendance at case management conference on September 2, 1999. (0.5 hours X 1 unit) |
0.5 |
0.5 |
|
13(a) (OPGI & FEDS) |
Counsel fee for preparation for hearing of application, January 10, 2000. |
5 |
5 |
|
13(b) (OPGI & FEDS) |
Counsel fee for preparation of day 2 of hearing of application, January 11, 2000. |
3 |
3 |
|
14(e) (OPGI & FEDS) |
Counsel fee on hearing on January 10 and 11, 2000. |
30.3 (10.1 hours X 3 units) |
20.2 (10.1 hours X 2 units) |
|
15 (OPGI & FEDS) |
Preparation and filing of memorandum of fact and law. |
0 |
0 |
|
24 (OPGI) |
Travel by counsel to attend hearing of Applicant's motion for leave to file the affidavit of Dr. David Hoel and a supplementary memorandum of fact and law in Ottawa on January 5, 2000. |
5 |
|
|
24 (OPGI) |
Travel by counsel to attend cross-examination of Paul Bernier in Ottawa on November 2 and 3, 1999. |
4 |
|
|
24 (OPGI & FEDS) |
Travel by counsel to attend cross-examinations of Dr. Gordon Edwards in Montreal on November 21, 1999 in accordance with order of Pelletier J. dated July 13, 2000. |
4 |
4 |
|
24 (OPGI) |
Travel by counsel to attend cross-examinations of Dr. Peter J. Waight and Donald Howard in Ottawa on November 10, 1999. |
4 |
|
|
24 (OPGI) |
Travel by counsel to attend cross-examinations of Donald Howard and Dr. Suzana Fraser in Ottawa on November 15, 1999. |
4 |
|
|
25 (OPGI) |
Services performed after Order of Pelletier J. dated July 13, 2000. |
1 |
|
|
25 (FEDS) |
Services performed after order of Pelletier J. dated May 23, 2000. |
1 |
|
|
26 (OPGI & FEDS) |
Assessment of costs. |
5 |
3 |
|
TOTAL |
233.5 units X $100 = $23,350.00 |
174 units X $100 = $17,400.00 |
|
[30] On Item 2, the maximum requested by both Respondents will be allowed. In doing so, I have considered the factors provided for in Rule 400(3) of the Federal Court Rules, 1998 namely the importance and complexity of the issue at stake and the amount of work involved. In awarding the maximum, the numerous affidavits (some scientific) that were filed in support of the application for judicial review and the two amendments, of said documents that were filed prior to the Respondents filing their material in response, were taken into account. Both OPGI and the Federal Respondents had to consider, upon preparing and filing their material, the 26 volumes that were filed by the Applicant as a Record and in support of their positions prepared their affidavits in response (some scientific). On the question of complexity and importance of the issue, I agree with Justice Pelletier when he states in his May 23, 2000 decision[1]:
... that the function of the Court in judicial review is not to act as an "academy of science" or a "legislative upper chamber". In dealing with any of the statutory criteria, the range of factual possibilities is practically unlimited. No matter how many scenarios are considered, it is possible to conceive of one which has not been. The nature of science is such that reasonable people can disagree about relevance and significance. In disposing of these issues, the Court's function is not to assure comprehensiveness but to assess, in a formal rather than substantive sense, whether there has been some consideration of those factors which the Act requires the comprehensive study to address. If there has been some consideration, it is irrelevant that there could have been further and better consideration.
[31] Nevertheless, I am of the view that the parties to this recourse had to understand the process, the scientific implication of the studies and the decision made by the Minister. And, in that regard, this was a complex issue of importance as it was related to public health. On this point, counsel for the Applicant himself admitted at the beginning of this assessment that the issues at stake were really important in their dealings with public health.
[32] On Item 4, OPGI withdrew the units claimed for: the preparation and filing of the motions for an order adding OPGI as a Respondent; the preparation of proposed timetable for consent order; and the motion on behalf of Power Workers Union for leave to intervene, since no orders as to costs were rendered on all three motions.
[33] On the remaining three motions claimed under Item 4 by both Respondents, all parties agreed upon the minimum number of units (2) for each one. Although there are no specific Court orders on these three motions regarding costs, they are brought pursuant to Rule 410 of the Federal Court Rules, 1998, and said costs must be borne by the party who brought the motions, which in this case is the Applicant. (See Maison de Pâtes Pasta Belle Inc. Olivieri Foods Ltd. [1998] F.C.J. No. 1171 (QL) (T.D.)).
[34] On Item 5, the Court's Order dated July 13, 2000 awards both Respondents the costs of the motion for leave to file the affidavit of Dr. David Hoel, under Column 5 of Tariff B. OPGI claimed the maximum number of units under this column, mainly because of the Court's timetable not being respected and causing a great deal of work between December 21, 1999 and January 5, 2000. The Applicant's main argument is that they had no choice in doing what they did and that it could not be avoided.
[35] The factors set out in Rule 400(3) of the Federal Court Rules, 1998 were considered, and I am of the view that neither paragraphs (i) and (k) are applicable. As for paragraph (g), I consider that the amount of work required for the hearing was important but of more importance were the deadlines the Respondents had to face. Consequently, I would allow the Federal Respondents 8 units and OPGI, 10 units, as they took the initiative on that motion. To be consistent with my reasoning under Item 5, I will grant 3 units x 2 hours to the Federal Respondents and 4 units x 2 hours to OPGI under Item 6.
[36] The units claimed by both Respondents under Item 5 for a motion for directions as to costs dated June 19, 2000 were withdrawn from the Bills of Costs since no order as to costs was rendered by the Court on that issue.
[37] With regards to Part C of Tariff B: Discovery and Examinations, the Court (Pelletier J.) on July 13, 2000 specifically mentions that costs shall include cross-examinations on affidavits.
[38] Separate claims were put before me for all cross-examinations conducted in this matter. The hours claimed for the attendance and conduct of all cross-examinations are not in dispute, however the numbers of units requested are. In my assessment of Items 8 and 9, I took into consideration the amount of work necessitated due to the complexity of the issues at stake.
[39] Under Item 8 for the preparation for cross-examination on the affidavits of the Applicants' deponents Normand De la Chevrotière, Dr. Gordon Edwards, Dr. Mark Goldberg, Siegfried Kleinau and Dr. Michael Power, I allow the number of units as claimed by both Respondents. The affidavits were very voluminous and dealt with complex technical details in nuclear and medical sciences. Being an expert in law does not make a lawyer an expert in science. Consequently, Respondents' counsel had to prepare themselves accordingly.
[40] On the affidavits filed on behalf of the Federal Respondents, I will not, as requested, allow the maximum number of units to Federal counsel for preparation for cross-examination, as these affidavits were sworn by the deponents testifying on their behalf and consequently the preparation for cross-examination on these affidavits was not as onerous. The number of units for the preparation for cross-examination of Paul Bernier will be reduced to 3 units, Dr. Suzana Fraser to 3 units, Donald Howard to 3 units and Dr. Peter J. Waight to 3 units.
[41] I agree with counsel for OPGI when he mentions that, although both OPGI and the Federal Respondents had a shared interest in this file, it was not the same and he had to prepare and understand all the evidence presented to the Court, including the evidence introduced by the Federal Respondents. Nevertheless, I will not allow the maximum number of units asked for under Item 8, since the preparation for these cross-examinations was solely for his better understanding of the case at bar. I will reduce the number of units to 3 for the preparation for cross-examination of Paul Bernier, Dr. Suzana Fraser, Donald Howard, and Dr. Peter J. Waight.
[42] On the preparation for cross-examination of Kurt Johansen (OPGI's affiant), counsel for OPGI claims the maximum number of units. For the reasons I gave earlier with regards to the Federal deponents, I will reduce the number of units to 3.
[43] The affidavit of Terry Pigeau was filed in support of the motion to intervene by Power Workers Union Cupe Local 1000 CLC. Leave to intervene was dismissed by the Court in the course of the action with no order as to costs. Therefore, there will be no units allowed for this Item, and for Item 9 in that regard.
[44] OPGI sought in its Bill of Costs eleven units for the preparation for cross-examination of Dr. David Hoel. At the assessment, OPGI reduced the number of units to 5. Dr. Hoel's affidavit was tendered into Court in the course of a motion to permit its late filing. On January 6, 2000, the Court (Pelletier J.) dismissed the motion with the question of costs to be addressed in the context of costs of the judicial review application. On July 13, 2000, Justice Pelletier awarded costs on the motion for leave to file the affidavit of Dr. Hoel to both Respondents including the cross-examination on affidavit. I agree with OPGI counsel that although the cross-examination never occurred, they had to be prepared for that eventuality. Furthermore, the time laps between the hearing and the Order of the Court on that motion and, the date the hearing on the judicial review took place, was very minimal. For these reasons, I am prepared to allow 3 units on Item 8 (Dr. David Hoel) on the basis that counsel would have had to be prepared, had the motion for filing this affidavit been granted.
[45] As previously mentioned, the duration of all cross-examinations held is not in dispute. Only with regards to the cross-examination of Dr. Suzana Fraser was the duration reduced on consent to 3 hours.
[46] With respect to Item 9 and consistent with my reasoning on Item 8, I am prepared to allow the maximum number of units where it is clear that the cross-examination was attended and conducted by counsel.
[47] With regards to any cross-examinations where counsel attended on the affidavit of its own client, and having regard to the complexity of the subject matter and in particular the voluminous amount of work necessitated, I will allow 2 units. Two units will also be allowed to Respondent's counsel attending on the cross-examination of other Respondent's deponents.
[48] Item 10 is allowed at 3 units, as agreed by both Respondents.
[49] On Item 11, OPGI asked for the maximum number of units for the case management conference that was held on September 2, 1999. I am not satisfied that the argument provided justifies the units claimed, i.e., that the client was concerned about delay. That argument is insufficient for me to allow 3 units X the duration of said conference. I therefore reduce it to 1 unit X the duration of said conference (30 minutes), as it was amended at the assessment by the Federal counsel in its Bill of Costs.
[50] Considering the response I gave under Item 2, to justify the maximum number of units allowed, plus the last minute event before the hearing of the main application, I am prepared to give the maximum number of units requested under Item 13(a) and (b).
[51] Item 14 is allowed as claimed in the Respondents Bills of Costs. In allowing the number of units claimed, I considered the fact that counsel for OPGI took the lead at the hearing of the judicial review application.
[52] Seven units are claimed by each Respondent under Item 15 for the preparation and filing of memorandum of fact and law. At the assessment, both counsel were asked to provide me with specifics as to when and where the Court ordered or directed the preparation and/or filing of written arguments. Neither counsel could refer me to specific orders or directions of the Court, but referred to paragraph 13 in the decision of Assessment Officer Stinson dated January 28, 2000 in Court File No. T-2434-91. I do not see under paragraph 13 of said decision any argument that supports the Respondents' position. I agree with the position taken by Assessment Officer Stinson and will consider any written arguments submitted as part of Item 13. Consequently, no units will be allowed under Item 15.
[53] The assessable services claimed by the Respondents include units for their travel costs to attend the hearing of the motion on January 5 and the cross-examination on affidavits. In that regard, reasonable costs were awarded by the Court (Pelletier J.) in the order of July 14, 2000. Counsel for OPGI expressed the view that it was reasonable to claim the maximum number of units on that Item since the clients pay for all the time counsel spends travelling and moreover the intent of the new Tariff is to compensate for real expenses incurred.
[54] Counsel for the Federal Respondents argued that he did not claim for all the trips made since Federal counsel usually travel to where the client is. As for the number of units claimed for the cross-examination of Dr. Edwards in Montreal, he amended it at the assessment to 5 units, claiming an oversight on their part.
[55] The reply from the applicant was that reasonable expenses apply to all travels and that the number of units claimed are excessive considering that most people work when they travel.
[56] On that last argument, counsel for OPGI replied that working on flights can be pretty difficult considering the confidentiality of certain matters.
[57] Claiming the maximum number of units on Item 24 is inordinate since counsel did not provide sufficient reasons for all travels made. I will allow 4 units for each and every travel made by the Respondents' counsel except for the travel OPGI's counsel made to Ottawa for the hearing on January 5, where I allow the maximum number of units under column III based on the fact that it was a last minute trip.
[58] Item 25 is granted as requested.
[59] I am prepared to allow 5 units to OPGI's counsel on Item 26 since he did take the lead for both Respondents at the hearing and 3 units to Federal counsel as suggested. Counsel did get prepared on the objection of prematurity and argued it at length. However, they were not faced with new arguments on the subject but certainly contradictory ones.
Disbursements
[60] The Respondents submitted claims for in-house photocopies. The evidence produced in support of these claims is thin. It does not provide any information as to how they arrived at the amount of $0.25/page. At the hearing, it was suggested that this was the "normal standard for the Court". This rate has generally been accepted by Federal Court assessment officers, but I am not prepared to concede that this is what it really costs law firms for in-house photocopies.
[61] The following excerpt from Justice Teitelbaum's decision in Diversified Products Corp. et al v. Tye-Sil Corp., 34 C.P.R. (3d) 267 supports my thinking on the actual cost for photocopies:
The Item of photocopies is an allowable disbursement only if it is essential to the conduct of the action. Therefore, this is not intended to reimburse a party for the actual out-of-pocket cost of the photocopy. The 25 charge by the office of plaintiffs' counsel is an arbitrary charge and does not reflect the actual cost of the photocopy. A law office is not in the business of making a profit on its photocopy equipment. It must charge the actual cost and the party claiming such disbursements has the burden to satisfy the taxing officer as to the actual cost of the essential photocopies.
[62] The photocopies made in this matter were clearly essential to the conduct of this action. The number of photocopies claimed by OPGI (12,438 pages) is reasonable considering the 1375 pages of its Record and the approximate 500 pages for the Johansen's affidavit. Counsel for the Federal Respondents amended its request for photocopying charges at hearing to $2500. He argued that this amount would cover most of the photocopying necessary for the Federal Respondents' affidavits and Record.
[63] As said, $0.25/page will not be allowed. No evidence was provided by the parties seeking that amount that justify it. Real costs were indeed incurred and in considering the figures mentioned above, a lump sum of $1500 will be allowed for each Respondent to cover all disbursements related to photocopies in this file.
[64] With respect to OPGI's claim for telecopier transmittal charges, I am of the view that, given the circumstances of this case, this Item is reasonable and necessary and, having regard to the fact that the other Respondent was situated in Ottawa, as well as the volume of the documentary evidence and the time constraints that counsel had to deal with, I will allow this Item in full.
[65] Having considered the argument made by Mr. Laskin on that point, the long distance telephone charges claimed by OPGI are considered reasonable and allowed as requested.
[66] However, OPGI did not present evidence to support its claim for litigation messenger and courier charges, except for Mr. Laskin's statement that these services were used to file documents with the Court and to serve other counsel. The use by counsel of litigation messengers and courier would certainly seem reasonable in this instance, considering the time constraints and the volume of documents. Therefore, notwithstanding that clear evidence was not presented supporting this Item, I am of the view that allowing half of the amount claimed, would be reasonable under the circumstances. On that claim for courier/postage, the amount claimed by the Federal Respondents is allowed to $112.34 as being reasonable and well documented.
[67] I will allow the Federal Respondents' claim of $13.67 for use of Quicklaw as this amount is fully covered in the affidavit filed in support of the Bill of Costs.
[68] OPGI claims $704.33 in disbursements for computer research. At hearing, Mr. Laskin submitted that this amount was for cost recovery only. The affidavit of Belinda Burnett filed in support of OPGI's Bill of Costs, states:
"The computer research costs claimed as a disbursement were all incurred in connection with research for this application. The amount claimed comprises amount charged to Torys by third party suppliers."
[69] Other than the statement in the Burnett affidavit, counsel for OPGI did not provide any other supportive documentary evidence on this Item. In my view, this amount seems to be excessive in comparison to what is claimed by the Federal Respondents. An Assessment Officer has to be satisfied that any amounts claimed are reasonable and necessary. While I agree that computer research is an excellent tool in the course of litigation and is certainly part of the disbursements a law firm incurs during the process of a legal matter, I have not been directed, nor have I been able to find supportive evidence on this Item. In the absence of such evidence and not being satisfied with the necessity for all the research claimed for, I will allow the sum of $50.
[70] The Court Reporters' fees claimed by the Federal Respondent were reasonable and necessary, and all are justified and supported by documentary evidence. They will be allowed as requested. As mentioned on the assessment, OPGI did provide, the next day, the affidavit of Dana Vitelli referring to the necessary documentary evidence to support their claim for the Court Reporters' fees for transcripts of cross-examination. Said claims will be allowed as I am satisfied that they were properly proven and that they were necessary and paid for.
[71] Both Respondents included Items in their Bills of Costs with regards to the necessary travel required to attend cross-examinations. Justice Pelletier addresses this issue in his July 13, 2000 order as follows:
For the reason set out above, it is hereby ordered that Ontario Power Generation is awarded the costs of the Motion for leave to file the affidavit of Dr. Hoel on Column 5 of the Tariff. Ontario Power Generation's costs shall include Item 24 of Tariff B, as well as reasonable travel costs with respect to the hearing of the Motion and the cross-examinations on affidavits.
It is further ordered that The Minister of the Environment, The Minister of Fisheries and Oceans, the Atomic Energy Control Board shall be awarded one bill of costs on Column 5 between them with respect to the Motion for Leave to file the affidavit of Dr. Hoel. These respondents' costs shall include Item 24 of Tarriff B, as well as reasonable travel costs with respect to the cross-examination on affidavits.
[72] I am satisfied with the evidence produced in support of this Item by the Federal Respondents and will allow the Item as claimed.
[73] As for OPGI, the only evidence in relation with travel disbursements is found at paragraph 8 in the affidavit of Belinda Burnett sworn on September 25, 2000 where it is stated that:
The airfares claimed as travel disbursements were all economy airfares.
Further, Mr. Laskin did mention at the hearing that all hotel costs and taxis were actual expenses incurred.
[74] Although satisfactory proof of these expenses was not provided at the assessment, it is clear that the cross-examinations, for which the travel expenses were made, took place and that counsel was present at such cross-examinations. The question to be determined is whether these expenses were reasonable. Based on my personal knowledge of airfare between Toronto, Montreal and Ottawa, as well as living expenses in these cities, I find these disbursements reasonable and they will be allowed as claimed.
[75] The Federal Goods and Services Tax (GST) claimed by OPGI will be allowed for a total amount of $1,966.29.
[76] The disbursements which I have allowed for the Federal Respondents are as follows:
|
Disbursements - Federal Respondents |
|
|
Photocopying charges |
$1500.00 |
|
Courier/Postage |
112.34 |
|
Quick Law |
13.67 |
|
Reporter's fees for transcript of cross-examination of Dr. M. Power (federal Ministers' portion) |
385.49 |
|
Reporter's fees for transcript of cross-examination of Dr. G. Edwards (federal Respondents' portion) |
521.62 |
|
Reporter's fees for transcript of cross-examination of Dr. M. Goldberg (federal Respondent's portion) |
948.96 |
|
Reporter's fees for transcript of cross-examination of Mr. de la Chevrotière (federal Respondents' portion) |
722.28 |
|
Travel for the cross-examination of Dr. Gordon Edwards on November 21, 2000, including airfare ($341.31) and taxi charges ($45.00) |
386.31 |
|
Total |
$4,590.67 |
[77] The disbursements which I have allowed for OPGI Respondent are as follows:
|
Disbursements - OPGI Respondent: |
|
|
Photocopying charges |
$1500.00 |
|
Telecopier transmittal charges (1,588 pages @ 0.35 page) |
555.80 |
|
Long distance telephone charges |
151.32 |
|
Computer research |
50.00 |
|
Litigation messenger and courier fees |
110.20 |
|
Reporter's fees fir transcript of cross-examination of S. Kleinau (OPGI's portion of account) |
85.53 |
|
Reporter's fees for transcript of cross-examination of Dr. M. Power (OPGI's portion of account) |
795.92 |
|
Reporter's fees for transcript of cross-examination of Dr. G. Edwards (OPGI's portion of account) |
577.50 |
|
Reporter's fees for transcript of cross-examination of Dr. M. Goldberg (OPGI's portion of account) |
913.62 |
|
Travel from Toronto to Ottawa for the cross-examination of Paul Bernier on November 2 and 3, 2000, including airfare ($677.31) and hotel ($126.00) - GST included |
803.31 |
|
Travel from Toronto to Ottawa for the cross-examinations of Dr. Peter J. Waight and Donald Howard on November 10, 2000, including airfare ($677.31), parking ($19.00), mileage ($14.52) and taxi charges (43.00) - GST included |
753.83 |
|
Travel from Toronto to Ottawa for the cross-examination of Dr. Suzana Fraser and the continuation of the cross-examination of Donald Howard on November 15, 2000, including airfare ($677.31), parking ($19.00), mileage ($14.52), taxi charges ($48.00) and meals ($10.00) - GST included |
768.83 |
|
Travel from Toronto to Montreal for the cross-examination of Dr. Gordon Edwards on November 21, 2000, including airfare ($704.43), parking ($19.00), mileage ($14.52) and taxi charges $28.00) - GST included |
765.95 |
|
Total |
$7,831.81 |
[78] Accordingly, Certificates of Assessment will issue in the amounts of $21,990.67 with respect to the Bill of Costs by the Federal Respondents and $33,148.10 with respect to the Bill of Costs by OPGI.
"Johanne Parent"
J. Parent
Assessment Officer
Toronto, Ontario
April 30, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-906-99
STYLE OF CAUSE: INVERHURON & DISTRICT RATEPAYERS' ASSOCIATION
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT, THE MINISTER OF FISHERIES AND OCEANS, THE ATOMIC ENERGY CONTROL BOARD, and ONTARIO POWER GENERATION INCORPORATED
Respondents
ASSESSMENT WITH PERSONAL APPEARANCE OF PARTIES ON WEDNESDAY, OCTOBER 18, 2000
ASSESSMENT OF COSTS -
REASONS BY: JOHANNE PARENT
DATED: MONDAY, APRIL 30, 2001
APPEARANCES BY: Mr. Rodney Northey
For the Applicant
Mr. Brian J. Saunders
For the Respondents the Minister of the Environment, the Minister of Fisheries and Oceans, the Atomic Energy Control Board, and Ontario Power Generation Incorporated
Mr. John B. Laskin
For the Respondent Ontario Power Generation Incorporated
SOLICITORS OF RECORD: BIRCHALL NORTHEY
Barristers & Solicitors
300-36 Wellington Street East
Toronto, Ontario
M5E 1C7
For the Applicant
Solicitors of Record ... cont'd Morris Rosenberg
Deputy Attorney General of Canada
For the Respondents the Minister of the Environment, the Minister of Fisheries and Oceans, the Atomic Energy Control Board, and Ontario Power Generation Incorporated
TORYS
Barristers & Solicitors
Maritime Life Tower, TD Centre
P.O. Box 270, Stn. Toronto Dom.
Suite 3000
Toronto, Ontario
M5K 1N2
For the Respondent Ontario Power Generation Incorporated
FEDERAL COURT OF CANADA
Date: 20010430
Docket: T-906-99
BETWEEN:
INVERHURON & DISTRICT RATEPAYERS' ASSOCIATION
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT, THE MINISTER OF FISHERIES AND OCEANS, THE ATOMIC ENERGY CONTROL BOARD, and ONTARIO POWER GENERATION INCORPORATED
Respondents
ASSESSMENT OF COSTS - REASONS
[1] Inverhuron & District Ratepayers' Assn. v. Canada (Minister of the Environment), [2000] F.C.J. No. 682 (QL) (T.D.).