Date: 20211201

Docket: T-2015-18

Citation: 2021 FC 1331

BETWEEN:

VALENTINA HRISTOVA

Applicant

and

CMA CGM (CANADA) INC.

Respondent

REASONS FOR ASSESSMENT

ORELIE DI MAVINDI, Assessment Officer

[1] This is an assessment of costs pursuant to the Judgment and Reasons of the Court dated December 17, 2019, dismissing the Applicant’s application for judicial review, with costs.

[2] On February 27, 2020, the Respondent filed its Bill of Costs. I became seized of the matter on June 17, 2020, and issued directions on July 27, 2020, advising parties that the assessment of costs would proceed in writing and establishing timelines for submissions.

[3] Subsequently, the Applicant filed responding costs submissions on September 11, 2020, and the Respondent filed reply costs submissions on October 19, 2020.

I. Assessable Services

[4] The Respondent’s Bill of Costs will be assessed in accordance with Rule 407 of the Federal Courts Rules, SOR/98-106 (FCR), which provides that unless the Court orders otherwise, party-and-party costs be assessed in accordance with column III of Tariff B to the FCR.

[5] The Respondent claimed $6,825.00 in assessable services.

A. Item 2 – Preparation and filing of all defences, replies, counterclaims or respondents’ records and materials and Item 15 – Preparation and filing of written argument, where requested or permitted by the Court

[6] The Respondent made a separate claim of 7 units, of an allowable 3 to 7 units, under Item 15 (Preparation and filing of written argument, where requested or permitted by the Court) for the preparation and filing for the Respondent’s memorandum of fact and law. The Applicant and the Respondent discussed at length whether the Respondent’s memorandum of fact and law claimed under Item 15 should be incorporated into the claim under Item 13 (preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff). At paragraph 30 of the Applicant’s responding costs submissions it was submitted that “…the preparation of the Memorandum of Fact and Law is part of hearing preparation under item 13 and should not be compensated”, citing the case Air Canada v Canada (Minister of Transport), [2000] FCJ No 101 (CanLII 14743 (FC)), at paragraph 13, in support of this position. The Respondent countered at paragraphs 20 to 23 of its reply costs submissions that the only criteria for the granting of units under Item 15 is that the written argument must be at the request or with the permission of the Court. In other words, to allow a claim under Item 15, it would suffice for the Court to request the written argument or allow permission for filing. The Respondent relied upon Canada (Attorney General) v. Sam lévy et associés inc., 2008 FC 980, Tourki v. Canada (Public Safety and Emergency Preparedness)), 2010 FC 821 and Bayer Inc. v. Apotex Inc., 2016 FC 1013, to establish that a claim under Item 13 and under Item 15 can stand separately.

[7] Though the Respondent did not specify which memorandum of fact and law was at issue, I could find no directions or Order of the Court requesting the preparation or filing of additional written argument. Thus given the context and from a review of the Court file, it would appear that the document at issue was contained within the two volume Respondent’s Record filed on April 15, 2019, pursuant to rule 310(2)(f) of the FCR. A Respondent’s Record filed pursuant to rule 310 of the FCR includes the following:

[8] The Respondent’s Record, including the memorandum of fact and law contained within the document is already compensated under Item 2 (Preparation and filing of all defences, replies, counterclaims or respondents’ records and materials) and distinguishable from a request from the Court for additional submissions under Item 15. At paragraph 27 of Biovail Pharmaceuticals Canada v. Canada, 2009 FC 665 (Biovail Pharmaceuticals) (A.O.), the assessment officer discussed this distinction:

27 Fee item 15 (written argument where requested or permitted by the Court) falls under the subheading E. Trial or Hearing. Such written argument usually occurs shortly after a hearing, but on occasion has been requested shortly before a hearing. It is not the memorandum of fact and law included in the respondent's materials under fee item 2. As the Court did not request such written argument, I disallow the fee item 15 claim in each matter [emphasis added].

[9] Likewise, in League for Human Rights of B'nai Brith Canada v. Canada, 2012 FC 234 (League for Human Rights of B'nai Brith Canada) (A.O.), at paragraph 21, the assessment officer came to a similar finding:

21 Counsel for Mr. Odynsky has claimed 7 units under Item 15 (preparation of written argument, where requested or permitted by the Court). Having reviewed the record, it appears that the claim under Item 15 relates to the service and filing of the Memorandum of Fact and Law. If this is the situation, the claim may not be allowed as claims for Memoranda of Fact and Law are allowed under Item 2 as part of the Respondent’s Record. Further, although I was able to locate two directions of the Prothonotary requesting written argument, both of these directions relate to Mr. Odynsky’s motion to strike for which no costs have been awarded by the Court. Although there is a third direction dated August 8, 2007, requesting a response to the Applicant’s letter dated July 31, 2007, I do not consider this a request for written argument as contemplated by Item 15 of Tariff B. There are no other directions requesting written argument. I have decided on many occasions that, absent a direction or request from the Court, Item 15 may not be allowed. (see: Moglica v. Canada (Attorney General), 2011 FC 466, Laboucan v. Loonskin, 2009 FC 194, Bartkus v. Canada Post Corp., 2009 FC 404 and Moodie v. Canada (Minister of National Defence), 2009 FC 608) Therefore, as there are no requests from the Court for written argument for which Mr. Odynsky is entitled to costs, the claim under Item 15 is not allowed.

[Emphasis added]

[10] Therefore, having reviewed the Court file, the parties’ submissions, the Affidavits of Tamara Nahorniak and the Affidavit of Valentina Hristova, sworn on February 4, 2019, the FCR, Biovail Pharmaceuticals and League for Human Rights of B'nai Brith Canada, 7 units will be allowed for the Respondent’s Record, inclusive of the Affidavit of Johanne Boivin, the Affidavit of Tamara Nahorniak and the Memorandum of Fact and Law.

B. Item 7 – Discovery of documents, including listing, affidavit and inspection

[11] The Respondent made two claims under Item 7 (Discovery of documents, including listing, affidavit and inspection) at 3 units of an allowable 2 to 5 units. The first concerned a letter to change the style of cause. The second concerned a letter where the Respondent indicated that it did not oppose the late filing of the tribunal record. I am without jurisdiction to allow either claim under Item 7 as they do not relate to the discovery of documents, including listing, affidavit and inspection. Further, the Order of the Court dated January 22, 2019, concerning the change to the style of cause indicated that the matter would be disposed of on a without costs basis. As I have previously held, an assessment officer may assess the allowable quantum of costs in view of jurisprudence, the Rules and Tariff B, but may not vary or interfere with the Court’s underlying decision of an award of no costs (Kreutzweiser v. Canada (Attorney General), 2020 FC 1143, Brace v. Canada, 2021 FCA 136). Consent to an extension of time to file the tribunal record in of itself pursuant to rule 7 of the FCR does not in of itself give rise to an entitlement to costs, particularly under the framework of Item 7. As discussed by the Applicant, neither party raised a formal objection regarding the timelines; I cannot subsequently re-adjudicate the matter at assessment. It was open to the Respondent to contest the extension of time formally by way of a motion seeking costs or subsequently by motion for directions from the Court to the assessment officer to award costs in relation to this transaction under 403(1) of the FCR to permit an allowance of costs. The Respondent’s claims under Item 7 are not allowed.

C. Item 10 - Preparation for conference, including memorandum and Item 11 - Attendance at conference, per hour

[12] The Respondent claimed 5 units of an allowable 3 to 6 units for Item 10 (Preparation for conference, including memorandum) and 2 units of an allowable 1 to 3 units for 0.25 hours under Item 11 (Attendance at conference, per hour). The matter at issue is a pre-hearing conference that was set down and took place on July 17, 2019, for a duration of 17 minutes to determine whether parties could reach a settlement agreement.

[13] The Applicant disputed the 5 units claimed under Item 10, submitting that the conference was brief and no preparation was required. The Applicant submitted that if it is established or held that preparation was involved for the pre-hearing conference, no more than three 3 units should be allocated. The Respondent countered that despite the pre-hearing conference’s brevity, the preparation was not less important given the objective of a possible settlement. The Respondent outlined that discussions with the client were necessitated to explain the objectives of the pre-hearing conference, to obtain instructions and to explain the impacts and consequences of a potential settlement agreement. Concerning Item 11 for the pre-hearing conference, the Applicant submitted that the conference only lasted a few minutes to determine if a settlement could be reached by parties, and relied on the assessment officer regarding this item. The Respondent in turn maintained that the claimed units adequately reflected the time spent and the pertinence of the pre-hearing conference.

[14] Having reviewed the Court file, the parties’ submissions on Items 10 and 11, and the Minutes of Hearing of the pre-hearing conference, I am satisfied by the Respondent’s position that despite the brevity, the subject matter of the pre-hearing conference was substantial. I find the steps taken in preparation of the pre-hearing conference, in particular, discussions with the client to explain the objectives of the pre-hearing conference, to obtain instructions and to explain the impacts and consequences of a potential settlement agreement warrant the 5 units claimed. With respect to Item 11, I am satisfied that 2 units at the mid-range of column III to Tariff B is warranted given that the pre-hearing conference concerned settlement and the judicial review hearing date had already been set. The brevity of the pre-hearing conference as discussed by the Applicant is taken into consideration under the 0.25 time allocation. Items 10 and 11 are allowed as claimed by the Respondent.

D. Item 13(a) – Preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff

[15] The Respondent claimed 5 units of an allowable 2 to 5 units for preparation for the judicial review hearing on October 21, 2019. The Applicant commented at paragraphs 26 and 27 of its responding costs submissions that there is no way to determine the preparation the Respondent undertook for the judicial review hearing. The Respondent at paragraph 18 of the reply submissions discussed that the preparation for the hearing was long and complex considering the number of arguments raised by the Applicant; further arguing that 5 units of an allowable 11 units for the preparation of the hearing was reasonable in these circumstances. Further to a review of the Court file and the parties’ submissions, I am inclined to agree that the mid-range of the column would be appropriate in these circumstances as the file was of moderate complexity. Yet, 11 units represents the highest end of column 5, and as previously discussed, the Respondent’s Bill of Costs is being assessed in accordance with Rule 407 of the FCR, which provides that unless the Court orders otherwise, party-and-party costs be assessed in accordance with column III of Tariff B. Thus, of the allowable 2 to 5 units for the Respondent’s preparation for the judicial review hearing, 4 units, at the midrange of column III is allowed.

E. Item 14(a) – Counsel fee: to first counsel, per hour in Court

[16] The Respondent claimed 3 hours at 3 units, of an allowable 2 to 3 units, for attendance at the judicial review hearing on October 21, 2019. The Applicant submitted that the presence in Court was straightforward and was comprised of oral arguments based on the records respectively filed by the parties prior to the hearing, but will rely on the assessment officer’s discretion. In reply, the Respondent submitted that they equally intend to rely upon the assessment officer’s discretion. From a review of the Court file, the hearing on October 21, 2019, lasted a duration of 2 hours and 30 minutes. Assessment officers routinely allowed additional time before the hearing to ensure counsel is ready for the commencement of the hearing. Time is also allocated for Registry personnel to ensure that there are no technical difficulties or outstanding housekeeping matters prior to commencement (Halford v. Seed Hawk Inc. 2006 FC 422, Estensen Estate v. Canada (Attorney General), 2009 FC 152, Double Diamond Distribution Ltd. v. Crocs Canada, Inc., 2021 FCA 47, Nova-Biorubber Green Technologies, Inc. v. Sustainable Development Technology Canada, 2021 FC 102). Accordingly, I find a claim of 3 hours for the hearing reasonable. In terms of the appropriate unit value for Item 14, having reviewed the Court file, the documents filed, and in particular, the Judgment and Reasons of the Court dated December 17, 2019, dismissing the Applicant’s application for judicial review, I have determined that the matter was of moderate complexity, the claim for 3 units is allowed as presented. Thus, 3 hours at 3 units is allowed for attendance at the judicial review hearing.

F. Item 26 – Assessment of costs

[17] The Respondent claimed 6 units for the assessment of costs. In response, at paragraphs 31 and 32 of the Applicant’s costs submissions, it is submitted that there is “no way to determine the time spent for the preparation of the Bill of Costs or the assessment of said costs by the Respondent” and indicated that it would rely upon the assessment officer for this item. At paragraph 24 of the Respondent’s reply submissions, the Respondent outlined that it intended to rely upon the assessment officer’s determination as well.

[18] Of the allowable 2 to 6 units for an assessment of costs, 6 units represents the highest point of Item 26 in column III of Tariff B. In my view, a claim of 6 units is excessive given the context of this assessment of costs. The assessment of costs was straightforward, did not require extensive materials from the parties or cross-examinations, and was conducted in writing, versus an oral hearing. The issues presented at the assessment of costs were not novel or particularly complex. Nonetheless, the lowest possible unit for the assessment of costs would be inappropriate given the affidavit evidence, written submissions and jurisprudence provided; thus, 4 units will be allowed for Item 26.

II. Disbursements

A. Supporting receipts

[19] The Respondent claimed $2,267.23 in disbursements for bailiff fees ($52.23), messenger fees ($45.00), facsimile ($80.00), photocopies ($708.00), legal research ($86.38), taxis ($7.73), printing ($1068.45), binding ($150.00), scanning ($57.90) and courier fees ($11.54). In response, the Applicant raised that the Respondent’s claimed disbursements were only supported by the Affidavit of Jane Chong sworn on February 26, 2020 (the “Affidavit of Jane Chong”), without supporting invoices enclosed making it challenging for the reasonableness and necessity of the claims to be established. The Applicant then discussed that “practically the entirety of the disbursements claimed by the Respondent seem to form part of the general office overhead” and should be removed or reduced for lack of supporting invoices. In the Respondent’s reply costs submissions, it was submitted that the Excel sheet provided at Exhibit A of the Affidavit of Jane Chong should have been sufficient to justify the claimed disbursements. The Respondent maintained the sufficiency of the documents provided, but agreed to provide the requested receipts as additional justification. These invoices were provided as Exhibit SM-1 to the Affidavit of Sandrine Mainville sworn on October 16, 2020 (the “Affidavit of Sandrine Mainville”).

[20] It would have been preferable for the invoices in the Affidavit of Sandrine Mainville to have been provided upon the filing of the Respondent’s Bill of Costs and the accompanying Affidavit of Jane Chong. However, as outlined by the assessment officer in Abbott Laboratories v. Canada (Health), 2008 FC 693 at paragraph 71, I find that I have sufficient material from the initial Excel spreadsheet, the Court Record and the parties’ submissions to support a number of the claimed disbursements, and a result of zero would be inappropriate in these circumstances:

71 In Almecon Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 at para. 31 (A.O.), I found certain comments in the evidence, although self-serving, nonetheless to be pragmatic and sensible concerning the reality of a myriad of essential disbursements for which the costs of proof might or would exceed their amount. However, that is not to suggest that litigants can get by without any evidence by relying on the discretion and experience of the assessment officer. The proof here was less than absolute, but I think there is sufficient material in the respective records of the Federal Court and the Federal Court of Appeal for me to gauge the effort and associated costs required to reasonably and adequately litigate Apotex’s position. A lack of details makes it difficult to confirm whether the most efficient approach was indeed used or that there were no errors in instructions, as for example occurred in Halford, requiring remedial work. A paucity of evidence for the circumstances underlying each expenditure make it difficult for the respondent on the assessment of costs and the assessment officer to be satisfied that each expenditure was incurred further to reasonable necessity. The less that evidence is available, the more that the assessing party is bound up in the assessment officer’s discretion, the exercise of which should be conservative, with a view to the sense of austerity which should pervade costs, to preclude prejudice to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd.

[21] Ultimately, the assessment of the claimed disbursements will be dealt with based on the Judgment, jurisprudence, the FCR, the Court file and the materials provided by the parties concerning costs. Any aspects lacking in specificity from the Respondent or not explicitly challenged by the Applicant will be dealt with in light of the assessment officer’s comments in Dahl v. Canada, 2007 FC 192 at paragraph 2 (Dahl):

2 Effectively, the absence of any relevant representations by the Plaintiff, which could assist me in identifying issues and making a decision, leaves the bill of costs unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of the judgment and the Tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. Certain items warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs.

B. Facsimile and photocopies

[22] At paragraphs 37 and 39 of Applicant’s responding costs submissions, the Applicant challenged the amounts sought for facsimile and photocopies as excessive, referring to Forestex Management Corp. v. Lloyd's of London, 2005 FC 263 (Forestex).

[23] The Applicant maintained that the Respondent’s claim of $80.00 for disbursements related to facsimile was “grossly exaggerated and unreasonable” as it constituted $2.00 per page, and a rate of $0.35 was determined to be excessive at paragraph 5 of Forestex. In reply to the Applicant’s challenge to the claimed disbursements for facsimile, the Respondent deferred to the assessment officer. Ultimately, I find that the Respondent has not provided me with sufficient information to assist me in determining whether a rate of $2.00 per page is appropriate for facsimile disbursements. I have not been provided with information outlining how and why this rate was chosen, and whether deductions have been made for general overhead expenses not directly related to the present file. In these circumstances, in the absence of this supporting evidence, I am satisfied by the Applicant’s reliance on Forestex to establish that $2.00 per page is excessive and allowed the reduced amount of $12.00 for facsimile.

[24] With respect to photocopying, the Applicant discussed the difficulty to establish the relevancy, necessity or reasonableness of the claimed photocopying disbursements. The Respondent further discussed that the photocopying rate of $0.30 per page was more than the “regular rate of $0.25 per page that has been accepted in the past”, referring to Forestex at paragraph 4 where the Court stated:

4 As to photocopying, counsel for the Plaintiff pointed out that it is possible to obtain photocopying at about $0.10 per page: that may be so with do-it-yourself machines at convenience stores and for high volume orders for outside photocopying. However I accept that law firms copying pages of material from time to time, in a high overhead location, cannot meet that figure. Moreover, $0.25 per page is not only the rate charged by the Federal Court for photocopying file material, but also seems to be a standard rate on Federal Court taxation. I am not prepared to reduce that rate.

[25] In response to the Applicant’s challenge to the claimed disbursement for photocopying, at $0.30 per page, the Respondent disputed this calculation and submitted that the quantum sought constituted $0.18 per page. Paragraphs 28 and 29 of the Respondent’s reply submissions read:

28 Concerning the photocopying, counsel for the applicant cites a decision to the effect that a reasonable fee is normally $0.25 per page.

29 In this regard, the respondent would like to point out that the fees charged (see the column entitled “Amount billed” in Exhibit A of the Affidavit of Jane Chong dated February 25, 2020) average $0.18 per page ($708.00 for 3,995 pages). The amount is therefore reasonable and should not be adjusted downwards.

[26] From a review of the Excel spreadsheet at Exhibit A of the Affidavit of Jane Chong, as outlined by the Respondent, $708.00 was claimed for 3,995 photocopies by Amelie Rioux during the period of November 26, 2018 to April 15, 2019 in this proceeding, which constituted a rate of approximately $0.18 per page. Having cross-referenced the claimed photocopies and the documents relating to this matter on the Court file, I am satisfied that the amount claimed was both reasonable and necessary to advance the proceeding. The photocopying disbursements are allowed as claimed.

C. Legal research (SOQUIJ and Quicklaw)

[27] The Respondent claimed $86.38 for legal research. The supporting evidence for the disbursements for legal research on SOQUIJ (Société québécoise d'information juridique) Databases and Quicklaw can be found in invoices 697673965, 697700130 and 697713674 at Exhibit SM-1 to the Affidavit of Sandrine Mainville. Legal research has routinely been allowed as a disbursement, however as was outlined by the Applicant, it is difficult to establish in these circumstances whether the amount claimed by the Respondent was part of the general office overhead, such as monthly service usage fees, and the invoices provided did not speak to the relevance, reasonableness and necessity of the searches. As discussed by the assessment officer in Lundbeck Canada Inc. v. Canada (Health), 2014 FC 1049 (Lundbeck) at paragraph 77, I am unable to assess the reasonableness of this claim without additional specificity:

77 As put by counsel for Lundbeck in his Written Representations in Response, it is “trite law that reasonable disbursements associated with computer-assisted research are allowable”. However, as discussed in Cameco Corp. v MCP Altona (The), 2013 FC 1263 (Cameco) at paragraph 54 and Truehope (supra), in this era where many law firms pay a flat-rate monthly fee for online research, the relevance and necessity of the research need to be clearly justified as the assessment officer needs to be satisfied of the reasonability of the disbursements per section 1(4) of Tariff B of the Rules. Even though this matter was of a certain complexity and certainly heavily disputed, the only evidence submitted refers to dates, rates, vendors’ names as well as series of numbers that are not corroborated by the internal file number asserted in the Leblanc Affidavit. As in Truehope, it is “left to the assessment officer to reach a conclusion concerning the relevance and necessity of the searches based on the dates of the searches”. I do not find that Lundbeck provided the necessary evidence to justify the amount claimed, nor the justification linking the research done to this matter. As in Cameco and Truehope, I find it difficult to assess the reasonability of the claim in consideration of the paucity of evidence provided. The amount claimed for online research will therefore be disallowed

[28] Thus, as argued by the Applicant, and in accordance with Lundbeck, the Respondent’s claim of $86.38 for legal research is disallowed.

D. Taxis

[29] The Respondent claimed $7.73 in taxis. However, having consulted the Excel spreadsheet at Exhibit A of the Affidavit of Jane Chong and the invoices at Exhibit SM-1 to the Affidavit of Sandrine Mainville, I am satisfied by the Applicant’s position that there is insufficient information to determine the reasonableness and necessity of the claim as no contextual information was provided. It would have been useful to know the date and purpose of the claimed taxi, without this additional information, the claim relating to taxis cannot be allowed.

E. Miscellaneous expenses

[30] The remaining miscellaneous disbursements claimed by the Respondent at issue are $52.23 for bailiff fees, $45.00 for messenger fees, $11.54 for courier fees, $1068.45 for printing, $150.00 for binding and $57.90 for scanning. The Applicant challenged these claimed disbursements as part of the broader discussion that the entirety of the disbursements were only supported by the Affidavit of Jane Chong and were not supported by invoices making it challenging to assess the reasonableness and the necessity of the claims. Having cross-referenced the documents on the Court file with the Excel spreadsheet at Exhibit A of the Affidavit of Jane Chong and the supplementary invoices at Exhibit SM-1 to the Affidavit of Sandrine Mainville, I find the claimed disbursements are reasonable, were necessary to advance the proceedings and sufficiently justified pursuant to the requirements of Tariff B 1(4).

[31] For the above reasons, the Respondent’s Bill of Costs is assessed and allowed at $7,335.54. A Certificate of Assessment will be issued.

“Orelie Di Mavindi”

Toronto, Ontario

December 1^st, 2021

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	t-2015-18
STYLE OF CAUSE:	VALENTINA HRISTOVA v CMA CGM (CANADA) INC.
MATTER CONSIDERED AT TORONTO, ONTARIO WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT BY:	ORELIE DI MAVINDI, Assessment Officer
DATED:	DECEMBER 1ST, 2021

WRITTEN SUBMISSIONS BY:

Seyed-Farhad Shayegh	For The Applicant
André Royer	For The Respondent

SOLICITORS OF RECORD:

Melançon Marceau Grenier & Sciortino, General Partnership Montreal, Quebec	For The APPLICANT
Borden Ladner Gervais Montreal, Quebec	FOR THE RESPONDENT