Date: 19980331
Docket: A-539-93
BETWEEN:
YOUSSEF HANNA DABLEH,
Appellant
(Plaintiff),
- and -
ONTARIO HYDRO,
Respondent
(Defendant).
TAXATION OF COSTS - REASONS
Charles E. Stinson,
Taxing Officer
[1] The Appellant (Plaintiff) presents his Revised Bill of Costs for taxation at the party and party level and incorporating the costs from the trial file, Court No. T-1422-90. Per IBM Canada Ltd. v. Xerox of Canada Ltd. [1977] 1 F.C. 181 (C.A.) at 182, I have broken out the costs by file number and taxed a bill of costs in each file. As the submissions at taxation applied in some instances to both bills, a copy of these Reasons are filed in T-1422-90 and apply there.
[2] By Judgment dated June 5, 1996, the Federal Court of Appeal allowed the appeal with costs in both the Appeal and Trial Divisions, set aside the Judgment of the Trial Division dated September 17, 1993, dismissed the cross appeal without costs, as between the parties, declared certain claims of the subject patent to be valid and enjoined the Respondent and others from inducing the use, by Hydro-Québec or New Brunswick Electric Power Commission, of the LIM apparatus as part of a SLAR or any similar apparatus where such use would constitute infringement of the said patent.
APPELLANT'S SUBMISSIONS IN GENERAL
[3] By way of overview, the Appellant's principal documents to support the bills of costs are the affidavits of Dr. Youssef Hanna Dableh (the Appellant) and Bruce W. Stratton, sworn April 4 and June 5, 1997, respectively (hereafter the Dableh affidavit and the Stratton affidavit). Transcripts of cross-examinations thereon (hereafter the Dableh cross-examination and the Stratton cross-examination) were filed at taxation. Exhibit P1-Tax is a rough calendar displaying the duration of various stages of trial evidence by names of witnesses called (omitted are one brief witness on fact and the three days of argument). Days numbered 20, 21 and 22 are Plaintiff's reply evidence. Other than trials addressing medical issues, this was one of the longest patent trials on infringement and validity ever before this Court.
[4] Mr. Stratton was junior counsel from 1987 until March 1994. To track expenditures, the law firm created computerized spreadsheets as an overview (see paragraph numbers 3 to 6 of, and Exhibit C, to his affidavit). Invoices associated with Dr. Dableh were paid directly by him. The Dableh and Stratton affidavits were created from these tables. The first page no. 1 and the second page no. 1 of Exhibit C respectively address the trial and appeal portions of the litigation: all invoices were addressed within the law firm of Sim Hughes except for the one associated with Smith Lyons dated 1/1/97 on the latter page. Reading from the left on the trial spreadsheet, the first column, DATE, represents the date of the invoice from the supplier, ie. witness, verbatim reporter, etcetera. The second column, INVOICE, names the supplier or source, ie. a four-digit code in some entries is a Sim Hughes invoice or, near the conclusion of the litigation, Smith Lyons. Note that the law firm's four-digit code appearing in Exhibit B to the Stratton affidavit, 5841, carried certain subcodes for Dr. Dableh, ie. 1, 2 or 3 representing respectively a general file for him, general litigation and the Federal Court litigation specifically. The third column, TOTAL, is the total amount followed by, in the fourth and fifth columns, apportionment thereof, as appropriate, to fees and disbursements respectively, ie. $1,262.07 total on 5/25/90 in the third column translates to $1,250.00 and $12.07 in the fourth and fifth columns respectively. The sixth and remaining columns then particularize the disbursements by nature, ie. $12.07 is entered again under "PHONE". To clarify, the abbreviated headings of OUTCOP; AGENCY; COURT F and FOR TX's for the ninth, tenth, thirteenth and nineteenth columns respectively address outside agency photocopies, searches, Court fees and trial exhibits. In the appeal spreadsheet, strike $3,658.20; $3,512.00 and $1,519.20 for 7/31/95; 3/7/96 and 3/30/96 respectively from the COPIES column, but leave them in the TOTAL column.
[5] Exhibit A to the Stratton affidavit is the draft Bill of Costs prepared from this information. Subsequently, the Revised Bill of Costs added certain fees and disbursements distinguished therein by underlining. It presents fees of $149,182.50, based on Tariff B, compared to the actual bill of several hundred thousand dollars rendered to Dr. Dableh for this litigation as a whole. Some discoveries from another action in the Ontario Court, General Division, were deemed, by agreement, to be part of the discovery in this action. They represent about 12 days and approximately $24,000.00 in associated fees that were not part of the actual bill rendered to Dr. Dableh for this litigation. Thus, the $149,182.50 presented is only about one-third of the $466,749.50 actually paid by Dr. Dableh to his lawyers for this litigation. The Honourable Madame Justice Tremblay-Lamer, in Sanmammas Compania Maritima S.A. et al. v. Ship "Netuno" et al. (1995), 102 F.T.R. 181 at 184, held:
| [6] The more current rule brings a new approach to taxing costs. Under the old regime, the jurisprudence was clear; the parties could not expect to recover all their costs under the tariff relating to party and party costs. However, under the new rule the general philosophy is that party and party costs should bear a reasonable relationship to the actual costs of the litigation. |
| [7] This new tendency is to ensure that parties will be able to recover closer to actual costs related to the litigation, always under the scrutiny of the court's discretion. Procedures and delays which could reasonably have been avoided by a party, will be taken into consideration when determining the taxation of costs. In other words, a clear message is sent to the parties: a party that has not been diligent will have to pay for the consequences. |
The Revised Bill of Costs, presented at $537,635.18, represents approximately 60% of Dr. Dableh's actual costs for this litigation, ie. 30% of fees paid plus 100% of disbursements. In some instances, the fee calculated under Tariff B approximates the actual fee paid to his lawyer.
[6] Defendant consented to the disbursement of $3,133.45 for Court fees, and to fee items C7, C8 and C8 at 5, 5, and 5 units respectively for discovery of documents and preparation for oral examinations for discovery. The Respondent consented to the disbursement of $5,352.96 for trial transcripts, and to fee items F17, F18, F20 and G25 at 1 unit each respectively for preparation of the Notice of Appeal, Appeal Book, Joint Application for hearing and services after Judgment.
T-1422-90
Fees
PLAINTIFF'S SUBMISSIONS
| Item No. A.1 Preparation and filing of Statement of Claim |
[May 18, 1990]
(7 units claimed) = $700.00
| Item No. A.2 Preparing and Filing Reply and Defence |
to Counterclaim [December 11, 1990]
(7 units claimed) = $700.00
| Item No. A.3 Amendment of Statement of Claim |
[Nov. 7, 1991]
(6 units claimed) = $600.00
| Item No. A.3 Amendment of Reply and Defence |
to Counterclaim [December 2, 1991]
(6 units claimed) = $600.00
[7] This litigation was unique for not having severed the issues of damages under Rule 480 of the Federal Court Rules: ultimately, this further complicated the trial. Some intervals during this litigation indicate complexity, ie. the Honourable Mr. Justice Muldoon gave judgment some fifteen months after trial and the Federal Court of Appeal itself took about six weeks to deliberate. Muldoon J. skewered Plaintiff's evidence at trial and found no infringement. In striking contrast, the Federal Court of Appeal, after four days of argument, found (pages 20-23) that the Trial Judge erred in law on both sides, in his resolution of the expert evidence, to the point of lack of "regard to the evidence". That, coupled with lengthy Memoranda of Fact and Law, indicates the difficulty on appeal and the heavy burden on the Plaintiff throughout. The maximum claimed, 7 units, for the Statement of Claim stems from the technical issues associated with the patent, ie. which claims were infringed. It is considerably less than what was actually paid, ie. see invoices dated May 25 and July 24, 1990, for $1,262.07 ($1,250.00 fees) and for $7,726.82 ($7,186.00 fees) respectively in Exhibit B to the Stratton affidavit. Therefore, Dr. Dableh claims $700.00, per Tariff B restrictions, for a service actually costing him about $8,000: this is inconsistent with the Netuno decision supra. The complexity of grounds of validity, obviousness and genesis of invention in the Statement of Defence and Counterclaim warrant the maximum of 7 units for the Reply and Defence to Counterclaim. The Order of the Associate Senior Prothonotary, dated November 4, 1991, authorized an Amended Statement of Claim further to changes to allegations arising out of discoveries. The maximum of 6 units claimed for this, and for the amended Reply and Defence to Counterclaim, is only a fraction of what Dr. Dableh actually paid to his lawyer.
[8] In rebuttal, Plaintiff argued that, relative to the financial implications for both sides as they prepared for trial, and given the difficulty for Plaintiff with the outcome at trial, the threshold under Rule 346(1.1) for maximums is met. Relative to Hydro-Québec and the New Brunswick Electric Power Commission, revenues in the order of $21,000,000.00 and savings of $50,000,000.00 - $60,000,000.00 were at stake. The Federal Court of Appeal questioned several aspects of the Trial Judge's rationale and gave the Plaintiff a favourable construction of the patent and an injunction to prevent Hydro-Québec and the New Brunswick Electric Power Commission from using SLAR technology. The Federal Court of Appeal addressed the issues of damages both for infringement and for the cross appeal and concluded that, as of the date of trial, infringement or inducement to infringe not yet having occurred, no damages flowed. Regardless, the tenor of the Federal Court of Appeal's Reasons in its review of the Trial Judge's rationale indicates that this litigation was more complex throughout than reflected in the taxation on November 2, 1994, of the Defendant's Bill of Costs further to the trial Judgment and I should now adjust accordingly. The conclusions in Carlile v. The Queen, 97 D.T.C. 5284 at 5285 apply:
| ... Ultimately, the Federal Court of Appeal was not unanimous in disposing of the issues but the measure for this and any item is not applied in hindsight bur rather as the gauge of the effort required at the time for prudent representation of the client. This must be balanced against the notion that litigants need not indemnify their opponents' professional representatives to educate themselves generally on the law as opposed to the permissible research relevant for the subject litigation. The test for the value assigned should be neutral. That is, it is not relative to difficulty for or effort by an individual solicitor because those variables exist in a continuum by experience and locale but rather, in the context of litigation generally, what were the challenges and consequences of the subject litigation.... |
DEFENDANT'S SUBMISSIONS
[9] In reply, Defendant argued that Rule 346(1.1), particularly ss.(a) for amounts claimed and amounts recovered, limits the scope of the Taxing Officer's considerations. By his experts, Plaintiff sought tens of millions of dollars, ie. Exhibit No. 71 at trial, the expert affidavit of William C. Dovey, estimated revenues of $21,000,000.00 to March 31, 1991, for Ontario Hydro and savings of $185,000,000.00 for Hydro-Québec and the New Brunswick Electric Power Commission for the period 1984-88; and Exhibit No. 69 at trial, the expert affidavit of David S. Urey, estimated royalties of 20-30%, depending upon timing, of the savings estimated by Mr. Dovey. However, the Trial Judge refused an accounting of profits. Further, the Federal Court of Appeal, although favouring Plaintiff in construction of the patent, found no tort of inducement of infringement had been established (page 26), and no infringement had yet taken place (page 30), and therefore concluded that damages were not appropriate. Therefore, relative to Rule 346(1.1)(a), Plaintiff's claim for tens of millions of dollars was denied: he received nothing. This disparity between amount claimed and amount received (nothing) should be noted throughout the bills of costs. As well, Reasons of Stinson T.O. dated July 13, 1992, in T-173-92: Westbank Property Management Ltd. et al. v. Westbank Indian Band Council at page 9 apply:
| ... I reject Defendant's submission that allowances for some items may be used to compensate for lack of indemnification for other items. The term "reasonably necessary" in Tariff B1(2)(b) cannot be stretched to include such offsets: each item is considered within its own circumstances relative to the critical path of litigation.... |
That is, Plaintiff is taxing a bill of costs, governed by Tariff B, as between the parties and not between himself and his lawyer: the percentage of the former compared to the latter is irrelevant. The Reasons supra for Defendant's taxation concluded that this "action belongs in the upper portion of Tariff items but not at the maximum". The amendment to Tariff B effected by SOR/95-282 does not change this. These pleadings were not unusual for a patent matter. Defendant suggests 5, 5, 4 and 4 units for items A1, A2, A3 and A3 respectively.
Disposition
[10] I allow 6, 6, 5 and 5 units for items A1, A2, A3 and A3 respectively. The Carlile decision, supra, and decisions cited therein, shape my approach throughout to the various items presented in the Revised Bill of Costs. Solicitor-client costs approximate "the actual costs of the litigation" (see my Reasons dated June 3, 1996, in A-333-94: Byers Transport Limited v. Dorothy Kosanovich et al. at pages 13-21) as I appreciate that phrase in paragraph No. [6] of the Netuno decision supra, and may be taxed without regard to Tariff B limitations on fees. Said paragraph No. [6] suggests that party and party costs allowed under the "new rule" will bear a reasonable relationship to the actual costs. For this Statement of Claim, I would attribute, very roughly, the $1,250.00 from the May 25, 1990 invoice and $4,223.00 only from the July 24, 1990 invoice to preparation and filing of the Statement of Claim for a total of $5,473.00. The maximum of $700.00 available under the Tariff does not appear to warrant applying the Netuno decision supra. Rule 346(6)(c) prevails over the the percentage factor (as to actual costs paid) advanced by Plaintiff. Finally, the Federal Court of Appeal had difficulty with the Trial Judge's approach and characterized (p. 15) the issues on appeal as myriad but, regardless of comments on the Trial Judge's rationale and the length of the appeal hearing, carefully settled them in turn apparently without undue or novel difficulties.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS
| Item No. B.4 Preparation and filing of an uncontested motion for conditional appearance for Ontario Hydro, including materials and responses thereto Order dated June 28, 1990 (costs in the cause) |
(4 units claimed) = $400.00
[11] Generally, Plaintiff asserted that, throughout this litigation, Defendant caused unnecessary costs because of its own lack of cooperation, ie. not admitting service thereby requiring Plaintiff to prepare affidavits of service or capitulating at the last minute on motions to compel answers on discovery which, in this Court, require detailed evidence. Therefore, in some instances, Plaintiff seeks fees for contested motions even if they did not proceed. Although this was not Plaintiff's motion, this phrase in Tariff B, Part II, item B5, "including materials and responses thereto", captures the work to which Plaintiff was put in responding to a motion which ultimately went on consent. This phrase in item B4, "including all materials", likely precludes any work by the respondent, such as Plaintiff here, for such uncontested motions. Here, the Order provided costs in the cause. This motion was presented under item B4 as "uncontested" for the maximum of 4 units. Actually, Plaintiff reacted to it as a contested motion within the meaning of the above-noted phrase in item B5: 4 units would be mid-range and taxable in item B5. Defendant argued that the preamble of the Order confirmed that this motion went on consent thereby putting it squarely within item B4. The language of item B4, being silent on responses, therefore restricts costs to the applicant on a motion. As for costs under item B5, there were no materials prepared specifically in response to the motion, ie. see question numbers 54-55 at pages 16-17 in the Stratton cross-examination.
Disposition
[12] I assessed this item under B4 and allowed 0 units. The evidence satisfies me that the event of this motion was not a straightforward matter of consent. The bill dated July 24, 1990, in Exhibit B to the Stratton affidavit (2nd page) contains several references to work on this motion. Counting only explicit references to this motion filed June 22, 1990, by Ontario Hydro, or to jurisdiction, but excluding those to the New Brunswick Electric Power Commission, which brought a coincident motion for similar relief, the draft statement in Exhibit B for 15.26.31 - 09/07/90 could have generated fees, payable by Plaintiff to his solicitor in a contested situation, of roughly $2,080.00 (Mr. Stratton at $150.00/hour = 2.00 hours for 21/06/90, 1.50, 0.10, 0.20, 0.10 and 0.30 hours for 22/06/90 plus 2.00 and 0.10 hours for 25/06/90 plus 1.10 hours for 26/06/90 plus 3.00 hours for 27/06/90, and Mr. Cameron at $260.00/hour = 1.5 hours for 26/06/90 plus 0.50 hours for 27/06/90). There may have been more (from entries not explicitly referring to this motion) or less (from entries for jurisdiction but with time attributable, in part, to the New Brunswick Electric Power Commission). Plaintiff received costs in the cause and incurred significant and real fees for an active response in the face of no certain resolution, until the last minute, of this motion. The plain reading of the words, "preparation ... of", in item B4 does not embrace such preparation for a motion by a respondent. Plaintiff argued that, regardless of appearances, the substantive circumstances of this event placed him within item B5 at all times. The issue is the benchmark for pegging a motion as contested or uncontested. Per the sentiment (addressing counsel fees) of Lord Justice Russell in Re Eastwood (deceased) (1974) 3 All E.R. 603 at 608:
| .... In our view, the system of direct application of the approach to taxation of an independent solicitor's bill to a case such as this has relative simplicity greatly to recommend it, and it seems to have worked without it being thought for many years to lead to significant injustice in the field of taxation where justice is in any event rough justice, in the sense of being compounded of much sensible approximation.... my emphasis. |
the Tariff should be broadly interpreted. Tariff B is not exhaustive of all possible events along the continuum of litigation. The rationale in Muller v. Canada [1989] 2 F.C. 303, addressing different circumstances, held that a motion is made when it is called in open Court before the Judge. Regardless, Plaintiff claims costs for an event which did not occur, ie. the contested situation of item B5. Rather, the uncontested situation of item B4 occurred. Therefore, Rule 344(6)(b) applies. Plaintiff can tax only his disbursements.
PLAINTIFF'S SUBMISSIONS
| Item No. B.5 Preparation and filing of a contested motion re jurisdiction of the Federal Court, including materials and responses thereto. Order dated October 4, 1990 (costs to the Plaintiff) |
(7 units claimed) = $700.00
| Item No. B.6 Appearance on a motion, per hour. Sept. 10, 1990 (1.5 hours) |
(3 units claimed) = $450.00
| Item No. G.24 Travel by counsel to attend motion in Ottawa Sept. 10, 1990 |
(5 units claimed) = $500.00
[13] This motion, lasting 1.5 hours, was heard coincident with applications on behalf of the other Defendants (Hydro-Québec and the New Brunswick Electric Power Commission were named Defendants in the style of cause until subsequently removed by Order) to contest jurisdiction. Counsel had to travel from Toronto to Ottawa. The complexity warrants the maximum. This language in item G.24, "at the discretion of the Court", can include the Taxing Officer because of its general phrasing. In the alternative, apply item G.27. The current Tariff was not available at the time that the Honourable Mr. Justice Dubé made his Order. In rebuttal, Plaintiff asserted that the $1,050.00 below was not a valid point of comparison because it was a negotiated settlement offer, including travel, based on the old Tariff. The total fees of $1,150.00 for preparation and attendance presented under Tariff B (Plaintiff multiplied 3 units per hour x 1.5 hours x $100.00/unit to get the $450.00 claimed for item B6) are small compared to the actual billing from his lawyer. In the Netuno decision supra, the taxed Bill of Costs overall was less than the total actually billed to and paid by the client. Therefore, if taxation of an individual item generates an amount, for indemnification by Ontario Hydro, exceeding the actual amount billed to Plaintiff for that specific service, that is acceptable so long as the amount taxed overall is less than the total amount billed to the client for the litigation.
DEFENDANT'S SUBMISSIONS
[14] Exhibit 5 to and question numbers 67-68 at pages 19-20 of the Stratton cross-examination establish that Plaintiff issued a cheque for $1,050.00, in favour of Hydro-Québec, relative to the Order dismissing the action, with costs, as against Hydro-Québec and against the New Brunswick Electric Power Commission. By comparison, Plaintiff seeks $1,150.00 for this motion alone exclusive both of disbursements and of any other costs to date in the litigation. Defendant suggests 5 units for item B5. As for item B6, see question number 2371 at page 381 of the Dableh cross-examination confirming Donald Cameron's (lead counsel) hourly rates for May 1990 - March 1991; March 1991 - June 1994; June 1994 - January 1996; January 1996 - January 1997, and January 1997 to date as $260.00; $275.00; $290.00; $310.00 and $325.00 per hour respectively. Bruce Stratton's (junior counsel) hourly rates for May 1990 - March 1991; March 1991 - June 1993 and June 1993 - March 1994 were $150.00; $160.00 and $180.00 per hour respectively. The $450.00 claimed for this item puts the hourly rate for counsel at $300.00 per hour whereas the evidence confirms the actual billing to the client at $260.00 per hour. Therefore, allow 2 units since Tariff B2(2) precludes fractions of units. For item G24, Defendant notes that the definition of "Court" in Rule 2 precludes the Taxing Officer. There is a separate definition for Prothonotary. Therefore, if the Taxing Officer was intended to exercise the "discretion" in item G24, there would have been explicit language to that effect. Therefore, Plaintiff cannot do, indirectly by item G27, what was precluded by item G24.
Disposition
[15] I allow 6 and 2 units respectively for items B5 and B6 (resulting in $400 allowed for the latter: see disposition below for the May 6 and 27, 1991, Orders). The prohibition in Tariff B2(2) precludes the use of fractions of hours. Tariff B addresses all taxable events in the litigation but not necessarily all events, ie. settlement discussions. Plaintiff's position was that if the amount taxed for a given individual event (such as here for counsel's appearance on September 10, 1990) exceeded the actual amount for that event paid by the client to his lawyer (as the evidence established here for September 10, 1990), that would be permissible because the total dollars on taxation allowed for all taxable events would be less than the actual dollars paid by the client to his lawyers for all of those taxable events. That position is impractical in some instances. For example, if costs were granted in a single interlocutory matter/event thereby cutting short the litigation, as here for Hydro-Québec and the New Brunswick Electric Power Commission, there would be an insufficient number of taxable events generating total dollars sufficient to offset, for a particular event, taxed dollars exceeding the actual amount, on the evidence, billed to the client. As well, Rule 346(1.1) does not permit suggest such offsets. Rule 344(6) permits adjustments. This issue of excessive indemnification arose because both sides tended to assume throughout this taxation that the number of units for hourly items such as B6 translates directly to a comparison of the hourly rate of counsel actually billed to the Plaintiff herein, in the absence of evidence to the contrary. The explanatory note to Amending Order No. 17, SOR/95-282, suggests otherwise. However, the Honourable Mr. Justice Cattanach on September 24, 1982, in T-4042-82: George Ferguson v. Commissioner for Federal Judicial Affairs on marginal notes suggests, to me, that such commentary must be applied carefully. The legislation as promulgated must apply. As for item G24, Rules such as Rule 344 refer to "Court" and "taxing officer" via language clearly suggesting, in context, that they are separate and distinct entities. Rule 346 (2)(b) makes this distinction more emphatic: "the Court" designates an "officer of the Registry" as "taxing officer". No units are taxable.
NOTE
Defendant's counsel objected to the extent of supplementation of the evidence in the argument of Plaintiff's counsel. I cautioned Plaintiff's counsel that the record could be problematic if his explanations ranged too far beyond the evidence. I noted, for both, my view that the process of taxation was rough and ready justice to an extent and therefore some latitude was appropriate.
PLAINTIFF'S SUBMISSIONS
| Item No. B.5 Preparation and filing of a contested motion re Ontario Hydro filing Affidavit of Documents, including materials and responses thereto. Order dated March 11, 1991 (costs to the plaintiff in the cause) |
(7 units claimed) = $700.00
| Item No. B. 6 Appearance on a motion, per hour. March 11, 1991 (6 minutes) |
(3 units claimed) = $30.00
[16] The filing of the Reply and Defence to Counterclaim on December 11, 1990, effectively concluded pleadings. The affidavit of Dino P. Clarizio sworn March 6, 1991, in support of the motion, asserted repeated requests to Defendant to file and serve its Affidavit of Documents. Defendant produced it on the eve of the motion. Plaintiff's counsel had to attend for 6 minutes on the calling of the motion to advise the Court of consent from the Defendant. Plaintiff claims only $30.00 under item B.6 per this calculation: [(6 min. ) 60 min.) x 3 units x $100.00]. Plaintiff claims under item B5, instead of B4, because the combination of a last minute capitulation and the requirement of Plaintiff's counsel to prepare, per his professional obligation to his client consistent with the Carlile decision supra, for anticipated resistance, required that he prepare and file it as a contested motion for which the maximum was appropriate. In rebuttal, Plaintiff asserted an historical rule of thumb in taxations of 2 hours preparation for 1 hour attendance. The client was charged 1" hours which included waiting time and not just the 6 minutes of actual argument. The dockets in Exhibit B to the Stratton affidavit include correspondence by Mr. Stratton with the Ontario Court of Appeal.
DEFENDANT'S SUBMISSIONS
[17] The Order, on consent, provided for costs in the cause: therefore, item B4 applies. To do otherwise is to ignore the plain language of the Tariff. Item B4 addresses preparation and filing. The difference in available ranges of units, ie. 2-4 versus 3-7, reflects the differing effort involved in preparation for items B4 versus B5. This was a straightforward matter: allow 2 units from the 2-4 unit range. Question numbers 69-78 at pages 20-22 of the Stratton cross-examination disclose about 1.5 and 2 hours for Mr. Stratton and for the student at $150.00 and $110.00 per hour respectively: this reflects effort appropriate for indemnification under item B4. Mr. Stratton appeared. Given the hourly rates actually billed to the client, 3 units translating to $300.00 per hour in Court is clearly unlawful. Allow 1 unit for item B6.
Disposition
[18] For items B4 and B6 respectively, I allow 2 units and 1 unit respectively. For the latter, the taxed amount translates to $100.00, and not $30.00 as presented, given the prohibition in Tariff B2(2): see disposition below for the May and 27, 1991 Orders. The docket in Exhibit B to the Stratton affidavit for the period ended 04/04/91 establishes a common interlocutory phenomenon in litigation: a litigant pressures his opponent for something, meets resistance or apathy, prepares and files a motion, prepares for the anticipated contested hearing, secures capitulation after incurring significant costs for the foregoing and appears in Court to get a consent Order to ensure compliance. Tariff B does not expressly include this as a taxable event but Rule 344(6)(b) is a possible avenue of relief. Any allowance from the available range in item B6, and factoring out the waiting time in evidence, appears to result in the excessive indemnification asserted by Defendant. I made the calculation required by Rule 346(1).
PLAINTIFF'S SUBMISSIONS
| Item No. B.5 Preparation and filing of a contested motion, including materials and responses thereto. Order dated May 6, 1991 |
[costs in the cause by Order May 27, 1991]
| (7 units claimed) = $700.00 |
| Item No. B.6 Appearance on a motion, per hour. |
May 6, 1991 (2 minutes)
(3 units claimed) = $10.00
| Item No. B.6 Appearance on a motion, per hour. May 27, 1991 (44 minutes) |
(3 units claimed) = $220.00
[19] This motion resulted because Defendant had not served an Affidavit of Documents by May 1991. The May 6, 1991, Order of the Associate Senior Prothonotary set certain time limits and postponed other aspects of the motion to May 27, 1991. Typically, the motion was two-pronged: compel answers on discovery and provide documents. The Defendant had previously been ordered to do the latter. On May 27, 1991, the Associate Senior Prothonotary addressed the balance of the motion, ie. to compel answers, and awarded costs in the cause. Plaintiff prepared for the May 6 appearance as if it were contested although the May 6 Order reflects consent. Both appearances resulted from the dilatory conduct of the Defendant and therefore warrant maximum units under items B5 and B6. No profit by costs would result because the client was billed more than the taxable amount available under Tariff B. In rebuttal, Plaintiff clarified that the characterization of the two-pronged motion as "typical" did not mean pro forma. Rather, the supporting affidavit of Marion Johnson, sworn May 1, 1991, confirms the necessity for considerable preparation. Mr. Cameron attended by himself on May 6, and attended with Mr. Stratton on May 27.
DEFENDANT'S SUBMISSIONS
[20] As the May 6 Order went on consent, item B4, and not B5, applies. This event flowed from undertakings, given for outstanding questions on discovery, ordinarily occurring regardless of whether motions such as this occur. Therefore, Plaintiff cannot associate their time with the taxable preparation time for the motion under item B4. Since Plaintiff himself characterized the motion as "typical", allow 2 units from the available range of 2-4 in item B4. The use of three units for the May 6 appearance effectively translates to $300.00 per hour. Mr. Cameron charged at $275.00 per hour, ie. less than that. Allow 1 unit for this consent situation. As for May 27, the motion as filed and the Order itself reflected few questions for consideration. The Court record and question number 75 at page 23 of the Stratton cross-examination confirm Mr. Stratton's attendance: he billed at $160.00 per hour. Therefore, consistent with taxation under the circumstances of item B4, allow 1 unit under item B6 for May 27.
Disposition
[21] I allow 6 units under item B5. The dockets in Exhibit B to the Stratton affidavit for the periods ending 08/05/91 and 04/06/91 disclose a number of hours associated with the questions themselves and with the actual motion. The latter docket disclosing activity on May 2 and 3 with a Mr. Finn, on behalf of Ontario Hydro, likely generated consent for a portion of the motion. The distinction, asserted by Defendant, between work ordinarily performed for fulfilling obligations of undertakings and work to prepare specifically for the motion, was not clear on the evidence, ie. see entries for 29/04/91 and 30/04/91. As noted above, there is a certain rough and ready aspect to costs suggesting a broad approach predicated on common sense: item B5 was the best fit on the evidence.
[22] I allow 2 units for the May 6 appearance: this translates to a taxed amount of $200.00 versus the $10.00 presented. Tariff B does not address fractions of an hour. However, read with Rule 346(1), it clearly precludes the result of $10.00 presented by Plaintiff, at least in terms of my authority. In Part 1, Tariff B2(1) and (2) read:
| B2. (1) On taxation, the taxing officer shall |
| (a) indicate the number of units allocated to each taxable service; |
| (b) where the service is based on a number of hours, multiply the number of units allocated to that service by the number of hours; |
| (c) multiply the total number of units by the unit value as established in section 3 or as adjusted in accordance with section 4 to arrive at a taxable total; and |
| (d) add the taxable disbursements. |
| (2) For the purposes of taxation, the taxing officer shall not allocate to a service a number of units that includes a fraction. |
The plain reading of the term "number", used throughout, suggests that it is one-dimensional, ie. whole numbers only and not fractions. For the event of May 6, 1991, allocate 2 units per hour, per Tariff B2(1)(a), to the appearance giving a result measured in units per hour. Per Tariff B2(1)(b), multiply the 2 units per hour by (2 min.) 60 min.) = 0.033 hours giving a result of 0.066 units. Note that the result is measured in units both because it is consistent with basic arithmetic principles, ie. (units ) hours) x hours factors hours as a measure out of the result, and because the language of Tariff B2(1)(c) implicitly requires a result from either B2(1)(a) or (b) measured in units, ie. "the total number of units. This issue is simple. Does the restriction in Tariff B2(2) operate solely to preclude allocation of a fraction in B2(1)(a) but not so as to preclude the use of a fraction for the "number of hours" in B2(1)(b) because this "number of hours" is not an allocation within the meaning of B2(2)? If so, the result of 0.066 units is permissible. However, is B2(2) intended to apply generally to all sections of B2(1) so as to preclude absurd results such as $6.60, ie. $100 x 0.066 units? I concluded that the ordinary sense of the term "number", as it is used throughout Tariff B2, is a set of values not expressed as a fraction of the unit of measure for the individual event addressed in the litigation. A number of hours expressed as zero, to capture an actual appearance, is absurd. A number of hours, to capture an appearance of 1-59 minutes, must be expressed as one hour. For something like 2 hours and 2 minutes, I would use 2 or 3 hours depending on the evidence, ie. such other factors as the circumstances of waiting time. It is not clear, on the evidence, whether the result of $200.00 for May 6 addresses Defendant's concern for profit: Plaintiff had an award of costs and I applied the mechanics of the Tariff. For May 27, 1991, under item B6, I allowed 2 units translating, per the appearance of 44 minutes in evidence, to $200.00 (2 units x 1 hour). The motion, returnable for 10:00 a.m., required an appearance at that time and not at 10:17 a.m. when it was ultimately called.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS; DISPOSITION
| Item No. B.5 Preparation and filing of a contested motion, including materials and responses thereto. |
Order dated June 24, 1991 (costs in the cause)
(7 units claimed) = $700.00
| Item No. B.6 Appearance on a motion, per hour. June 24, 1991 (45 minutes) |
(3 units claimed) = $225.00
[23] This was an appeal of a portion of the May 27, 1991, Order. Plaintiff relies on his submissions thereto. The Defendant asserted that preparation was minimal given that the materials were already part of the record, this being on appeal and that, for items B5 and B6 respectively, 4 and 2 units would suffice since Mr. Cameron attended. I allow 6 units and 2 units respectively (the latter translating to $200.00). The docket for the billing period ending 04/07/91 is unclear at 24/06/91 as to attendance on this motion, ie. the entry for 1.0 hour for Mr. Cameron at $500.00 per hour. On November 2, 1994, for Defendant's Bill of Costs, I allowed $90.00 of $125.00.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS; DISPOSITION
| Item No. B.5 Preparation and filing of a contested motion for an Order for discovery answers of Dr. Ford, including materials and responses thereto. Order dated Sept. 9, 1991 |
(7 units claimed) = $700.00
| Item No. B.6 Appearance on a motion, per hour. Sept. 9, 1991 (1 minute) |
(3 units claimed) = $5.00
[24] The Plaintiff asserted that, as above, this was prepared as a contested motion. Defendant consented at the last minute: accordingly, the hearing lasted only one minute. The submissions above addressing May 6 and 27, 1991, apply. The Defendant noted that the preparation was straightforward and that item B4 for an uncontested motion on consent must apply: allow 2 units. Defendant suggested 1 unit for item B6 per its submissions above on profit. In rebuttal, Plaintiff noted that 1 unit for item B6 would generate $1.67 in place of the $5.00. I cannot allow anything here. The Order was silent on costs. My rationale in Carlile, supra, at pages 5285-6 and 5288 applies.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS
| Item No. B.5 Preparation and filing of a contested motion for discovery answers of Dr. Ford, amendment of the Style of Cause and leave to file an Amended Statement of Claim, including materials and responses thereto. Order dated November 4, 1991 (costs in the cause) |
(7 units claimed) = $700.00
| Item No. B.6 Appearance on a motion, per hour. November 4, 1991 (5 minutes) |
(3 units claimed) = $25.00
[25] The Plaintiff noted the complexity of this motion stemming from a variety of issues, ie. lack of timely answers and refusal to answer questions on discovery, amendment of the style of cause, file an Amended Statement of Claim and Rule 480 directions. It went on consent but the Plaintiff had to prepare for it as if it were contested. The submissions above addressing the March 11, 1991, Order apply. In rebuttal, Plaintiff noted that, while no written consent existed, the supporting affidavit of William Barber sworn October 23, 1993, confirmed lack of consent from the outset. The Defendant suggested that, as above, the record disclosing only a motion on consent, allow 3 units and 1 unit for items B4 and B6 respectively.
Disposition
[26] I allow 4 and 2 units for items B4 and B6 respectively. For item B6, the application of Rule 346(1.1), the limit of my jurisdiction, translates to $200.00 for Mr. Stratton's appearance. The docket in Exhibit B to the Stratton affidavit for the billing period ended 04/12/91 disclosed charges to the client of $80.00 for 0.50 hours to appear and draft the consent Order. Thus, the dollars associated with the oral submissions were somewhat less than $80.00. The evidence clearly established that the billing of $80.00 to Plaintiff did not include briefing and preparation. The hearing was returnable at 10:00 a.m. and was called at that time: there was no waiting time. As above for the October 4, 1990 appearance, I considered whether I should allow, regardless of my lack of authority under Rule 346(1.1), only a level of units equal to or less than the amount disclosed, on the evidence, for which the Plaintiff would be liable to pay his solicitor. Here, the result would have been outside the range of 1-3 units in Column III. In allowing 2 units, I applied the imperative language of Rule 346(1) restricting taxation to the limits of Column III of Part II of Tariff B unless otherwise directed.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS
| Item No. B.5 Preparation and filing of a contested motion, including materials and responses thereto. |
Order dated February 20, 1992 [costs in the cause]
(7 units claimed) = $700.00
| Item No. B.6 Appearance on a motion, per hour. February 20, 1992 |
(6 hours, 43 minutes)
(3 units claimed) = $2,015.00
[27] This motion by the Defendant sought Plaintiff's re-attendance on discovery. The Plaintiff argued that the preamble of the Order noted certain questions went on consent and others were not pursued leaving the Associate Senior Prothonotary to address the balance of certain complex issues. The Court record discloses a duration of 6 hours, 43 minutes. The Plaintiff claims 7 units for item B5 per this language: "Preparation ... of ... responses thereto". The Defendant agreed that item B5 applied but at the lower end of the range because this was simply a response. Question numbers 102-7 at pages 29-31 of the Stratton cross-examination disclose that he could not recall having prepared documents. The docket (billing period 09/03/92) in Exhibit B to his affidavit discloses that the 3 units claimed, translating to $300.00 per hour, are clearly excessive given that Mr. Stratton appeared and billed for less than that, ie. 7.5 hours at $160.00 per hour for a total of $1,200.00. For items B5 and B6 respectively, Defendant suggests 4 units and 1 unit.
Disposition
[28] I allow 6 and 2 units for items B5 and B6 respectively. I allowed $105.00 of $125.00 on Defendant's Bill of Costs at November 2, 1994. The entry in the docket for 20/02/92 indicates that part of the 7.5 hours addressed preparation. Entries of 0.20 and 5.2 hours, for preparation by Mr. Stratton on February 18 and 19 respectively, were billed for $864.00 in total. Assuming reasonableness, the total billed to Plaintiff, for items B5 and B6, appears to be $2,064.00 ($1,200.00 + $864.00). My allowance per Rule 346(1.1) translates to $600 and $1,400.00 for items B5 and B6 respectively for a total of $2,000.00. This approaches a solicitor-client result for these events: the Order did not so provide. Isolating item B6, the maximum for which Dr. Dableh appeared liable to pay his lawyers was $1,200.00, ie. $200.00 less than the result predicated on Rule 346(1.1). I followed my rationale above.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS
Item No. G. 23 Attending Taxation of Costs by Defendant, per hour
August 3, 1994 (3 hours)
(3 units claimed) = $900.00
Item No. G.26 Taxation of Costs by Defendant August 3, 1994
(6 units claimed) = $600.00
(from G. MISCELLANEOUS on page 6 of Revised Bill of Costs)
| Item No. B.5 Preparing and Filing Motion appealing the taxation of costs |
by the Defendant
(7 units claimed) = $700.00
| Item No. B.6 Appearance on a motion appealing the Taxation of Costs by the Defendant, Order dated November 28, 1994 (33 minutes) |
(3 units claimed) = $165.00
[29] The Plaintiff presented items G23 and G26 (clerical errors corrected: $300.00 for G23 should read $900.00 and $1,800.00 for G26 should read $600.00) because Defendant forced premature taxation following Judgment in the Trial Division. The novelty of the issues at taxation warrant the maximum in the ranges. The same argument applies to items B5 and B6 for the appeal of the taxation. The Defendant argued that the particular language of G26, "Taxation of Costs", is all inclusive and therefore precludes anything under G23 for this event. The Bill of Costs then in issue was straightforward compared to the Revised Bill of Costs in issue now. Allow 3 units. As for items B5 and B6, the portion of the Order awarding costs to the Defendant still stands: Plaintiff is not entitled to tax costs for these items. In rebuttal, Plaintiff argued that it would be unfair to deny his costs for items B5 and B6 relative to an award ultimately displaced by Judgment of the Federal Court of Appeal.
Disposition.
[30] I allow 5 units for item G26. I allowed $90.00 of $125.00 to the Defendant in 1994. For item G23. I allow nothing and note that the structure of the Tariff breaks out appearance fees, distinct from preparation fees, for certain events such as motions and discoveries and also precludes preparation fees for events such as references while still allowing an appearance fee. Therefore, it would be a stretch to conclude that item G26 reading "taxation of costs" was not all inclusive to an extent permitting it to be extrapolated to the "not otherwise" provision in item G23, ie. in effect, concluding that G23 addressed only preparation. Plaintiff cannot tax anything for items B5 and B6: my conclusion on interlocutory events in Byers, supra, at pages 18 and 38 applies.
PLAINTIFF'S SUBMISSIONS
Item No. C.9 Attending on examinations of Ontario Hydro, per hour
(3 units/hr. claimed) = $21,750.00 based on estimated 72.5 hours
for May 22-25 incl. and 28, 1990; April 2-5 incl.; July 16 and 18, and October 3 and 7, 1991
| Item No. C.9 Attending on examinations of Dr. Dableh (3 units per hour claimed) = $19,620.00 based on estimated 65.4 hours for February 11-15 incl. 1990; April 8-11 incl. and December 4-5 incl., 1991 and Jan. 14, 1992. |
[31] Paragraph No. 29 of the Stratton affidavit confirms that part of the discovery of Dr. Ford (Ontario Hydro) from the Ontario Court, General Division action was deemed discovery in this Court. Paragraph numbers 30 and 31 outline the calculations underlying Mr. Stratton's estimate of 72.5 hours for Dr. Ford ie., 28.4 hours for May 22-28, 1990 and 44.1 hours for April 2 - October 7, 1991. Faced with Defendant's interjection that it could demonstrate, on supporting material, that 41.1 hours should replace the 44.1 hours, Plaintiff amended this item to 69.5 hours for $20,850.00. Allow the maximum given the complexity, apparent in the Trial and Appeal Division Reasons, of issues of nuclear science and electromagnetism. Also, several re-attendances were by Court Order. As well, paragraph number 35 of the Stratton affidavit confirms that part of the discovery of Dr. Dableh in said Ontario Court action was deemed discovery here. Paragraph numbers 36 and 37 outline the calculations underlying Mr. Stratton's estimate of 65.4 hours. As above, the complexity warrants the maximum. In rebuttal, Plaintiff argued that there was no evidence that costs for the Ontario Court, General Division, were not addressed there, ie. if the parties consented to deem the discoveries there to be applicable here, they fell within the Federal Court Tariff therefore, and the parties cannot renege on that obligation to indemnify actual time and effort. Plaintiff reduced the estimate for Dr. Dableh to 65.0 hours for $19,200.00 and noted that other counsel would have attended on the Ontario Court, General Division discovery.
DEFENDANT'S SUBMISSIONS
[32] There were related proceedings in the superior courts of Ontario and New Brunswick per Exhibits G, H and I to the Pardy affidavit. In particular, the Ontario Court actions began in 1987 and 1988. Question numbers 108-110 at page 31 of the Stratton cross-examination indicate that there was no specific agreement that these costs of the Ontario Court discoveries would become part of the Federal Court costs. Mr. Stratton's calculations were inappropriate: he could have contacted the solicitor for the Ontario Court action to confirm the actual total of hours. Question numbers 111-115 at pages 31-32 of the Stratton cross-examination establish that May 22-28, 1990, were the discovery dates for Dr. Ford imported from the Ontario Court action. Those 28.4 hours are not taxable in a Federal Court Tariff not expressly providing for costs from another jurisdiction. As for the balance of 41.1 hours, allow the mid-range of 2 units consistent with the November 2, 1994, result at taxation for the Defendant. Similarly, question numbers 136-42 at pages 38-39 of the Stratton cross-examination addressing paragraph numbers 36-37 of his affidavit establish that February 11-15, 1990 and December 4-5, 1991 were the discovery dates for Dr. Dableh imported from the Ontario Court action. As above, those hours are not taxable. In reviewing his calculations with him on cross-examination, he arrived at 23 hours, 23 minutes for the Federal Court portion: down from his original calculation of 24.75 hours. Question number 144 at pages 39-40 confirms that Mr. Stratton attended on the Federal Court discovery dates, ie. April 8-11, 1991 and January 14, 1992. Therefore, allow 1 unit because of his hourly rate of $160.00 per hour (see docket ending 08/05/91 and 04/02/92 in Exhibit B to his affidavit).
Disposition
[33] I allow 2 units for each item C9 fee translating to $14,000.00 (2 units per hour x 70 hours x $100) for Dr. Ford and $13,000.00 (2 units per hour x 65 hours x $100) for Dr. Dableh. Regardless of whether the hours associated with the Ontario Court action are allowed, this result of 2 units for Dr. Dableh's discovery yields a profit by costs in the order of $40.00 per hour per Defendant's interpretation of the evidence. As above, I did not interfere. I allowed the hours associated with the Ontario Court action on the basis that, at the relevant date, Plaintiff was liable to pay, whether to his solicitor of record here or in the Ontario Court action, and Defendant, by Judgment here, was liable to indemnify, costs attributable to litigating this action. If the evidence had disclosed that the Plaintiff was not liable to pay, or that he had already been indemnified for these services by a Judgment for costs in another jurisdiction (to the extent that partial indemnity, by reason of cumulative costs from several jurisdictions, is not a limiting factor), the Plaintiff could not have taxed the imported hours.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS; DISPOSITION
| Item No. D.10 Preparation for pre-trial conference, including brief |
(6 units claimed) = $600.00
| Item No. D.11 Attendance at pre-trial conference, per hour (3 units claimed) = $150.00 |
May 27, 1991: 10 min
Nov. 20, 1991: 15 min
Jan. 21, 1992: 5 min. Total time: 30 min.
[34] Plaintiff argued that the pre-trial conferences were more a series of meetings. Court records provided durations. The dates were almost coincident with discovery dates and essentially addressed the setting of a trial date. There was little paperwork to prepare, ie. the Joint Application, but the necessity to prepare for three conferences, as opposed to one, warrants the maximum. Defendant noted that question numbers 147-50 at pages 40-2 of the Stratton cross-examination confirm that no formal materials were required and that things such as scheduling of witnesses were discussed and suggested 3 and 2 units for items D10 and D11 respectively. The docket ended 04/02/92 in Exhibit B to the Stratton affidavit discloses Mr. Cameron, for the 21/01/92 conference, billed 0.30 hours at $275.00 per hour ($82.50). Exhibit D to the Stratton affidavit, the Court docket, is unclear whether counsel attended on that date and on November 20, 1991.
I allow 4 and 2 units for items D10 and D11 respectively. I applied only the 30 minutes for the three attendances in total, and consistent with my analysis above, this translates to $200.00.
PLAINTIFF'S AND DEFENDANTS SUBMISSIONS; DISPOSITION
| Item No. D. 13 Counsel fee: |
| (a) preparation for trial |
(5 units claimed) = $500.00
(b) preparation for trial per day in Court after the first day
(3 units x 24 days claimed) = $7,200.00
[35] Plaintiff argued that the actual duration of 25 days, which exceeded the estimate of 15 days, suggests complexity. Defendant conceded item D13(a) and suggested 2 units, per Rule 346(1.1) factors, for item D13(b). I allow the 3 units presented. As part of its submissions on pleadings, Plaintiff emphasized the contrast between the Court of Appeal's rationale and that of the trial Judge as an indication of the difficulty. I am reluctant to use such comparisons. For Defendant's November 2, 1994 taxation, I allowed $200.00 of $250.00 based on submissions and conclusions addressing, in part, the relative weights of action and counterclaim. A result of 2 units from the available range of 2-3 units simply would not have reflected the appropriate result per Rule 346(1.1).
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS
Item No. E.14 Counsel Fee:
(a) to first counsel, per hour in Court (3 units)
May 11 (5 hrs. 52 min): 1,760.00; May 12 (7 hrs. 4 min): 2,120.00;
May 13 ( 6 hrs. 28 min): 1,940.00; May 14 (7 hrs. 4 min): 2,120.00;
May 15 (7 hrs. 36 min): 2,280.00; May 19 (7 hrs. 9 min): 2,145.00;
May 20 (5 hrs. 24 min): 1,620.00; May 21 (6 hrs. 42 min): 2,010.00;
May 22 (7 hrs. 12 min): 2,160.00; May 25 (6 hrs. 49 min): 2,045.00;
May 26 (9 hrs. 5 min): 2,725.00; May 27 (7 hrs. 8 min): 2,140.00;
May 28 (6 hrs. 49 min): 2,045.00; May 29 (6 hrs. 57 min): 2,085.00;
June 1 (7 hrs. 52 min): 2,360.00; June 2 (7 hrs. 25 min): 2,225.00;
June 3 (6 hrs. 58 min): 2,090.00; June 4 (2 hrs. 27 min): 870.00;
June 5 (5 hrs. 20 min): 1,600.00; June 8 (7 hrs. 34 min): 2,270.00;
June 9 (7 hrs. 39 min): 2,295.00; June 10 (4 hrs. 28 min): 1,340.00;
June 11 (6 hrs. 43 min): 2,015.00; June 12 (6 hrs. 42 min): 2,010.00;
June 15 (6 hrs. 17 min): 1,885.00
total duration 167 hrs. 11 min (167.183 hrs. claimed) =
TOTAL $50,155.00
(b) to second counsel $25,077.50
[half of (a)]
[36] The Plaintiff, per question numbers 151-57 at pages 42-3 of the Stratton cross-examination, conceded that 141.5 hours should replace the 167.183 hours presented. The Plaintiff noted the absence of any objection to second counsel fees. The charge to the client exceeds the Tariff allowance. Plaintiff's counsel noted that this matter was so complicated that even the Trial Judge got it wrong. The Defendant conceded that there were complex issues, but Plaintiff's limited success on the remedy of damages must be considered under Rule 346(1.1)(a). The Plaintiff cannot achieve indirectly, via the maximum here, what his indemnification for item D13 has already addressed. Given that this item confines itself to the time in Court and given Mr. Cameron's hourly rate of $275.00 per hour, allow 2 units to preclude profits by costs.
Disposition
[37] I allow 3 units for lead counsel only which translates to $42,600 (142 hours x 3 units per hour x $100). I allowed $260.00 of $300.00 per half-day on Defendant's taxation. My rationale above for item D13(b) applies. The docket discloses that Plaintiff was billed $41,937.50 for lead counsel appearing at trial. Defendant's calculation per question numbers 151-57 above in the Stratton cross-examination specifically factored lunch breaks out of the total of 167.183 hours to arrive at 141.5 hours thereby excluding any indemnification for said lunch breaks. These calculations are consistent with Court records. I let this result stand per analysis above. As for second counsel, and consistent with analysis above for item G24, I have no jurisdiction to allow units in the absence of a visible exercise of discretion by the Court, ie. a Judge.
A-539-93
APPELLANT'S AND RESPONDENT'S SUBMISSIONS
Item No.F.19 Memorandum of Fact and Law
(7 units claimed) = $700.00
[38] The Appellant noted the length of this document and the significance of its references to the evidence. The Trial Judge characterized Plaintiff and his witnesses as dissemblers (page 37) and found disagreement between the experts. The Appellant had to resurrect his case partly through demonstrating that the Trial Judge failed to appreciate that Respondent's experts were not at odds with Appellant's experts on relevant points. Ultimately, the Federal Court of Appeal confirmed this absence of disagreement among witnesses. In summary, Appellant's counsel argued that the convoluted reasoning of the Trial Judge contrasted with the cogent analysis by the Federal Court of Appeal suggests the difficulty posed by this appeal and the importance of this document therein. The Respondent argued that the limited success on remedy precludes the maximum but, given the amount of work on factual issues, allow 6 units.
Disposition
[39] I allow 6 units. Counsel for both sides were excellent in making and rebutting points throughout bulky materials. I gave some weight to Defendant's point on remedy. The Federal Court of Appeal did not appear to have much difficulty in resolving the issues. The Memorandum of Fact and Law was important to this resolution but, in terms of Rule 346(1.1), I do not think its preparation warranted the maximum.
APPELLANT'S AND RESPONDENT'S SUBMISSIONS; DISPOSITION
| Item No. F.22 Counsel Fee on hearing of appeal (April 1996): |
(a) to first counsel, per hour (3 units)
April 22 (6 hrs. 17 min): 1,885.00; April 23 (6 hrs. 50 min): 2,050.00;
April 24 (7 hrs. 2 min): 2,110.00; April 25 (1 hr. 48 min): 540.00;
TOTAL (21 hrs. 57 min. claimed) = $6,585.00
[40] At this point, Appellant's counsel billed in excess of $300.00 per hour. The Appellant paid his solicitor more than the amount presented under the Tariff. Given complexity and volume, allow the maximum of 3 units. The Respondent noted that the hours, as calculated from Court records, did not reflect breaks such as lunch. Based on 1.25 hours for lunch for the first 3 days, reduce this item to 18 hours, 12 minutes (the Appellant agreed to $5,460.00 for the 18.2 hours). In rebuttal, Appellant noted that the relief was limited only by the fact that, as of the trial date in 1992, Respondent had not yet infringed and therefore no damages could be forthcoming at that point. The Appellant clearly established infringing methodology. I allow 3 units translating to $5,700.00 (19 hours x 3 units per hour x $100). Rule 346(1.1), as applied to this case, suggests something in the upper range.
APPELLANT'S AND RESPONDENT'S SUBMISSIONS; DISPOSITION
Item No. G.26 Taxation of Costs by Plaintiff
(6 units claimed) = $600.00
| Item No.G.23 Attending Taxation of |
Costs by Defendant, per hour **, 1997 (** hours)
(3 units claimed)
[41] The Appellant and Respondent both relied on their submissions above for the August 3, 1994 taxation. They agreed that the September 4 and 5 appearances totalled a net 5 hours, 15 minutes and 7 hours respectively. The October 2 appearance totalled 2 hours, 15 minutes. The Respondent argued that, the disbursements having been presented inefficiently in the material, ie. no pagination, the maximum was not justified. In rebuttal, Appellant's counsel characterized the volume associated with this taxation as great as any in his experience, ie. considerable evidence coupled with detailed cross-examination. The defining moment of obstinacy may have been Respondent's attempt to force a concession of $1.67, down from $5.00, for the September 9, 1991 appearance: Defendant reacted by noting inconsistency, ie. the quantum of $5.00 was not the issue there. I allow 6 units for item G26 only. My conclusions above for the August 3, 1994 taxation apply for this item G23. This taxation was difficult because of the problems for the parties in resolving the circumstances of this litigation and associated limits of indemnification, as disclosed in the evidence, with the structure of the Rules and Tariff.
DISBURSEMENTS
PLAINTIFF'S SUBMISSIONS
Dr. Gordon Slemon: $31,297.50 claimed
[42] Paragraph number 46 of the Stratton affidavit summarizes Dr. Slemon's purpose, ie. claim construction and infringement. Under several headings, his affidavit formed the basis of Plaintiff's case in chief on infringement. He did not know until the eve of trial that Defendant's expert, Dr. Lavers, was a member of his own firm, Electrical Engineering Consociates Ltd. He testified on the first 5 days of trial (interrupted by David Urey on day 5) and on day 20. The trial transcript discloses his presence during Dr. Laithwaite's evidence but not that of Dr. Lavers although he saw part of the latter's transcript. He also commented on Defendant's experts, Dr. Laithwaite and Dr. Lavers. Therefore, he was at trial for 10 days, or parts thereof, and he reviewed some testimony for other days. Given that he was the backbone of Plaintiff's case, and given success on appeal relative to resurrection of Plaintiff's technical evidence, his bill is justified. Dr. Lavers charged a comparable amount, ie. see pages 7 and 14-15 of the November 2, 1994, Reasons for Taxation herein cutting his bill down from $28,890.00 to $18,190.00. Dr. Lavers was a technical witness of secondary rank, Dr. Laithwaite being the Defendant's principal expert. In rebuttal, Plaintiff noted that evidence supporting Defendant's taxation was scanty, ie. Dr. Lavers' invoice was literally one line: see Exhibit B to the affidavit of Dorothy Mills sworn April 22, 1994, in support of Defendant's Bill of Costs. In contrast, Exhibit P-1 Tax, coupled with references to the trial transcript, provided better detail, ie. Dr. Slemon was present for twice as long as Dr. Lavers. Further, there was no evidence, supporting Dr. Lavers' account, comparable to the several examples in the Sim Hughes docket, ie. the 6 hours by lead counsel on April 8, 1992, to meet with him. There was no evidence that Dr. Slemon was used for other proceedings.
DEFENDANT'S SUBMISSIONS
[43] It was important to note that Exhibit F to the Stratton affidavit, Dr. Slemon's invoices, confirmed that he belonged to the same firm as Defendant's expert, Dr. Lavers. These invoices are remarkable for their lack of detail, ie. nothing for number of hours, tasks performed and hourly rate, all of which were concerns on the earlier taxation for Dr. Laithwaite. The rationale at pages 14-15 of the November 2, 1994 Reasons taxing Dr. Lavers' account down some $10,000 is significant today given disapproval of the structure of the invoice presented then and given that Plaintiff still chose to present the same mode of deficient proof, ie. docket entries detailing meetings could have been appended rather than inviting the Taxing Officer to hunt for the information. Given that Plaintiff commenced a variety of proceedings, there is every possibility that his work may have addressed matters other than the Federal Court litigation. Reduce this account by some $10,000 to the order of Dr. Laithwaite's.
Disposition
[44] I allow $25,000.00 + $1,750.00 GST = $26,750.00. Exhibit B to the Stratton affidavit discloses several days of preparatory activity by counsel with Dr. Slemon. My rationale in the November 2, 1994, Reasons, supra, applies.
PLAINTIFF'S SUBMISSIONS
William Dovey: $51,334.85 claimed
[45] Paragraph number 47 of the Stratton affidavit addresses his purpose, ie. as a chartered accountant, expert evidence on issues of profits realized by, or damages caused by, Defendant as a result of infringement. These issues were relevant given some $21,000,000.00 in revenue received by Defendant relative to this technology. As well, his evidence disclosed potential savings of some $185,000,000.00 for Hydro-Québec and the New Brunswick Electric Power Commission if they had used the technology. Therefore, his evidence, coupled with the expert evidence of David Urey, addressing expected royalties for this technology (see paragraph number 48 of the Stratton affidavit), provided the picture of profit and damages. Exhibit G to the Stratton affidavit, Mr. Dovey's invoice, includes a two-page summary of his activities and their timing. Exhibit No. 4 to the Stratton cross-examination (handwritten notes are those of Defendant's counsel) discloses $15,840.00, for 48 hours of non-Federal Court work, ie. perhaps Ontario Court, after trial, deducted from the invoice to arrive at the $51,334.85 presented. The docket therein confirms information in Exhibit B to the Stratton affidavit. Mr. Dovey's affidavit was made an exhibit at trial. He testified for part of day 6. Given the absence of a Rule 480 Order severing the hearing of damages, the considerable dollars potentially at stake, Mr. Dovey's experience in Court proceedings and the extent of actual work required, this expense, in full, was prudent in the circumstances then, regardless of the fact that the Federal Court of Appeal ultimately held that it did not have to address profits and damages. In rebuttal, Plaintiff argued that the relevant factor is whether the invoice is due and payable and not whether it has yet to be paid. At trial, Plaintiff won on validity and lost on infringement. There was some segregation relative to costs which did not occur in the Federal Court of Appeal's disposition and, given its rationale, the costs today cannot be taxed on the same basis as below. It allowed costs without specifically excluding this expense. Mr. Dovey's evidence was brief because he had only two numbers at trial to crystallize, ie. profit and potential value, but those calculations were key and novel.
DEFENDANT'S SUBMISSIONS
[46] Page 14 of the Dableh cross-examination disclosed that the invoice has not yet been paid. The Court rejected Mr. Dovey's evidence. His time charges are excessive. There is no evidence of the amount of time devoted to other actions nor evidence of underlying detail for the dockets in Exhibit 4 to the Stratton cross-examination. The 230.1 hours originally presented were reduced by $15,840.00 after disclosures between the parties but the evidence still does not establish reasonableness for the remainder, ie. for less than one day of testimony. For example, the entry in Exhibit 4 for 03/27/1992, 0.6 hours re. "ntario actionn to talk about the", confirms he worked on other litigation: a significant portion of his hours should be assigned to these other proceedings. The dockets at pages 4 and 5 of Exhibit 4 contain several examples of deficiencies in the evidence, ie. useful for number of hours but not to confirm tasks: see 45.0 hours on 03/21/1992 for some unspecified purpose. Strike all such entries. Further, the dockets are replete with errors and omissions, ie. on page 5, May 19 and 20, 1992, show "in stand" but Exhibit P1-Tax confirms only May 19. A starting point would be to allow $20,000.00. However, reduce it further given that the Trial Judge completely discounted Mr. Dovey and Mr. Urey and given that, on appeal, the award for damages was nil.
Disposition
[47] I allow $39,252.95. Exhibit G to the Stratton affidavit billed $71,400.03, being 230.1 hours at $290 per hour + GST. The hours for dockets left blank, or showing Ontario action work, from his involvement at 11/04/1991 to 05/08/1992 (just before trial), totalled 55.6 hours. There were blank dockets during trial. Some of the remaining docket entries at pages 4 and 5 addressed either case preparation or preparation of the expert report. The others were too obscure to confirm one way or the other. In the circumstances, I agree with Plaintiff that he had to prepare this expert, but I deducted the 55.6 hours above thereby allowing 126.5 hours at $290 per + GST.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS
David Urey: $20,322.66 claimed
[48] The Plaintiff noted the evidence, paragraph numbers 48-49 of the Stratton affidavit, addressing his purpose, ie. expert affidavit filed on "the amount of a reasonable royalty for the technology at issue". Mr. Stratton's evidence addresses the conversion of the US dollars invoice to Canadian funds. Mr. Urey's invoice, already paid, is reasonable given these unique issues in an environment of potential savings of $185,000,000.00. Mr. Dovey, while an expert accountant, was not versed in negotiating licence agreements. The illegible page in Exhibit H to the Stratton affidavit is a reminder note but is not part of the docket setting out activities on individual days. In rebuttal, Plaintiff reiterated his argument for Mr. Dovey: the Federal Court of Appeal did not segregate Trial Division costs and did comment negatively on the Trial Judge's rationale to the extent that the latter's view should not be a factor. The Defendant reiterated its argument on Mr. Dovey above and noted that Mr. Urey claims some 80 hours preparation for less than one day's testimony in Court. He included his full hourly rate for time in the air between Pittsburgh and Toronto. These factors suggest excessiveness: allow 4-5 days for preparation. Given that the Trial Judge completely discounted his evidence, reduce his account further. His disbursements and the US exchange rate were acceptable.
Disposition
[49] I allow $17,272.31. Throughout this taxation, I have applied the approach summarized at page 5287 of the Carlile decision, supra. In Defendant's taxation, Dr. Laithwaite's compensation for travel time was complicated by the factor of weekends: I taxed off travel time there in the absence of evidence that potential earning time had otherwise been compromised. Here, travel was during ordinary business days and additional work was accomplished on those days. While the Federal Court of Appeal did comment negatively on the Trial Judge's rationale, it did not have to evaluate this particular expert's evidence. The Trial Judge's view of Mr. Urey appears at pages 85-87 of the Reasons, supra, and is predicated substantially on his excerpts from the cross-examination. I agree that, on its face, Mr. Urey's relevance could be characterized as tenuous. The Plaintiff's motives were genuine in his use of this US patent attorney specializing in licensing and intellectual property law. The Judgment for costs did not expressly exclude his expense. That said, I cut 12.75 hours which I would have associated with taxable case preparation, ie. reviewing other expert opinions such as on March 20 (one of several throughout) but which Plaintiff should have recognized, in the circumstances, as beyond him. Individual entries, ie. March 20, included work relevant, and taxable, to his own expert opinion. Paragraph number 48 of the Stratton affidavit discloses different US exchange rates throughout the billing period. His hourly rate was $200 US per. I reduced his account as follows. Delete one hour from the March 20 entry in the April 11, 1992, invoice: $200 US x 1.1875 = $237.50 Cdn. Delete 1, 2, 0.75 and 0.25 hours respectively from the April 4, 9, 11 and 13 entries in the May 1, 1992, invoice: $800 US x 1.1990 = $959.20 Cdn. Delete 2.5, 3.75 and 1.5 hours respectively from the May 7, 8 and 11 entries in the June 1, 1992, invoice: $1,550 US x 1.1959 = $1,853.65 Cdn. Note that his arithmetic for his May 11 entry was incorrect in that 1.5 + 2 hours = 3.5 hours for two distinct activities should have generated $700 US instead of the $300 US shown: I assumed said $300 US was a function of the 1.5 hours which I deleted.
PLAINTIFF'S SUBMISSIONS
Dr. Raymond D. Findlay: $24,847.65 claimed
[50] Paragraph number 50 of the Stratton affidavit addresses his charges. He gave rebuttal evidence, addressing Defendant's expert concerning validity, and some of Dr. Laver's evidence, on day 21 at trial. Exhibit I to the Stratton affidavit breaks down his time, ie. entries for May 19 and 22, to assist lead counsel with Dr. Laithwaite's evidence. The Trial Judge qualified him as an expert. In rebuttal, Plaintiff argued that the supporting evidence was valid, ie. the Dableh cross-examination was consistent with the lack of contingency of billings. The June 30, 1992, bill was fully due and payable.
DEFENDANT'S SUBMISSIONS
[51] The Defendant argued that the June 30, 1992 invoice, Exhibit I, reading as it does, "... please do not feel that this needs to be paid immediately. I suggest we agree on a payment schedule that will not leave you unduly strapped for cash. Perhaps we can discuss it sometime soon", indicated it may not be taxable, ie. not yet paid. As well, pages 14-15 of the Dableh cross-examination disclose that he will pay Dr. Findlay when he has the money. That is, there may never have been a fixed invoice for this person but rather some understanding that what will be paid is whatever amount is ultimately taxed. The docket entries are general statements only and lack specific detail. A claim of 16.5 days for preparation at $1,500 per day for limited testimony is excessive. The 6 days for February 26 to April 4 represents case preparation, as opposed to trial preparation. Coupled with entries for assessment of other experts, his preparation time for his own testimony must have been relatively brief. For Defendant's taxation, Plaintiff argued for two hours preparation for one hour of actual testimony. Reasonable preparation would be 4-5 days.
Disposition
[52] I allow $21,097.65. The Trial Judge was less than flattering in commenting that "Dr. Findlay appeared to have been called merely to support his friend and former protégé, the plaintiff. His testimony and report were of no use to the Court in the resolution of the matters in issue." The Federal Court of Appeal had difficulty with the Trial Judge's fundamental rationale concerning the substance of the patent. That portion of the trial was within Dr. Findlay's expertise. I read his report relative to entries such as this, in his invoice for April 4, 1992, "Review Dableh's PHD program". The correlation appears to be in paragraph numbers 11-32 inclusive of his expert affidavit. The difficulty for Dr. Dableh in this litigation, although an expert on the subject in issue, was that he needed independent expertise given his own personal involvement. I can only surmise that the Trial Judge's disapproval may have been rooted somewhat in a suspicion of Dr. Findlay's motives, ie. to defend his own conduct relative to this technology. Plaintiff likely did not have a lot of available choices for relevant and independent expertise particularly with regard to minimizing travel expenses. In any event, Dr. Findlay provided a real service. However, I note that an independent expert must be guided by counsel, and not the client, if there is a solicitor of record. Here, I have no evidence that the full and partial days for the March 13, April 6 and 21, May 23 and 30 meetings with the client were strictly a function of counsel's guidance. I would have thought a " day sufficient given time docketed elsewhere with lead counsel and for case preparation. I deleted 2.5 days at $1,500 per day.
DISCOVERY TRANSCRIPTS (incl. GST)
ONTARIO HYDRO: $9072.79 claimed; DR. DABLEH: $3310.49 claimed
[53] The Defendant indicated that only those portions of transcript associated with the Ontario Court action were in issue, ie. as calculated with Plaintiff's counsel per paragraph number 32 of the Stratton affidavit for Ontario Hydro, $3,493.00 (excl. GST) for the May 22-29, 1990 period, and per paragraph number 38 of the Stratton affidavit for Dr. Dableh, $1,842.18 inclusive of GST ($996.00 + $69.72 GST for February 11-15, 1990; $150.00 + $10.50 GST for June 18, 1991, and $575.66 + $40.30 GST for December 5, 1991). Both sides relied on their submissions above for item C9. Consistent with my conclusion for said item C9, I allow these as presented.
APPELLANT'S / PLAINTIFF'S SUBMISSIONS
TRIAL DIVISION (incl. GST) APPEAL DIVISION (incl. GST)
phone $364.46 claimed phone $77.70 claimed
telecopy $460.86 claimed telecopy $35.97 claimed
copies $15,980.80 claimed copies $1,236.49 claimed
copies $971.20 claimed copies $17.12 claimed
agency $1,138.26 claimed agency $64.35 claimed
postage $56.00 claimed postage 1.50 claimed
delivery $845.25 claimed delivery $138.54 claimed
trial exhibits $555.87 claimed other expenses $737.55 claimed
other expenses $869.35 claimed meals $5.20 claimed
meals $1,210.08 claimed
[54] The spreadsheets in Exhibit C to the Stratton affidavit address these items. Their assignment, by Division of the Court, represents Plaintiff's best estimate: some may have been inadvertently misallocated. Given that the Federal Court of Appeal allowed costs in both Courts, leave them as is unless there is a need to attribute them otherwise (Defendant conceded this). Paragraph numbers 54-68 of the Stratton affidavit outline the manner in which GST is presented and detail each item. Generally, the draft statements, Exhibit B, refer to each item's purpose. Exhibits 1, 2 and 3 to the Stratton cross-examination address meals, copies and trial exhibits respectively. Copies presented at $15,980.80 and $1,236.49 were prepared internally ($0.25 per page charge to the client). The other two copy charges, $971.20 and $17.12, were from external agencies. Dr. Dableh himself made some copies to reduce costs but the law firm, given the volume evident by looking at the Court file, had to run copies as well. The jurisprudence addressing internal copies has ebbed and flowed, ie. see Stinson T.O. on August 30, 1995, in T-940-89: Canastrand Industries Ltd. v. Ship "Lara S" et al., consistent with the notion of the reasonable relationship to actual costs in the Netuno decision supra. In rebuttal, Plaintiff noted that the Dableh affidavit, and not the Stratton affidavit, addresses Appeal Division costs. The reality of modern litigation, ie. to expedite, is that multiple copies of documents are required for Judges, witnesses, court reporters etcetera. Otherwise, the sheer bulk of materials would stall the pace at each stage of litigation. Mr. Stratton's evidence is that dollars for the other lawsuits were broken down and docketed separately, ie. the code, 5841-3, in the December 31, 1990 (Exhibit B) draft statement, marks the Federal Court action as distinct from the other lawsuits. The telephone calls to Inch Easterbrook, Plaintiff's solicitor in the Ontario Court action, were taxable given the agreement to use the Ontario Court transcripts here. Overall, the reasonableness of this shoestring approach is evident relative to the length of, and effort for, this litigation.
DEFENDANT'S SUBMISSIONS
[55] Although there is evidence of dockets generated concerning certain expenses, it does not extend to reasonable necessity and, given the absence of any other evidence, allow reasonable, but lower than presented, amounts. The available evidence is itself wanting. For example, paragraph number 56 of the Stratton affidavit refers to calls to the firm of Inch Easterbrook. The lack of a cogent summary, or any orderly grouping or labelling of the various chits, as opposed to the cluttered jumble found in the Stratton affidavit, precluded the Defendant and the Taxing Officer from any meaningful understanding of charges such as these telephone calls. Additional materials exchanged between counsel, but not on file, suggest some calls did relate to other litigation, ie. the November 18, 1994 call. This absence of an organized presentation of invoices similarly precluded independent confirmation of the other items, ie. telecopies. There was no breakdown, no purpose given, and no identification of documents photocopied. Litigants do not necessarily expect a specific accounting for each page but 60,000 plus pages are excessive here. Pages 14-15 of the Stratton cross-examination addressed purpose, ie. for counsel (Mr. Cameron and himself), students, client and experts, but no significant numbers for others, ie. consultants. Paragraph number 62 of the Stratton affidavit and page 15 of his cross-examination disclose photocopies associated with the agency charges above. Such multiple copies of documents, transcripts and case law may be convenient but are not reasonably necessary in the absence of hard evidence: reduce both charges to something reasonable. Both charges for postage should be reduced per the rationale of Stinson T.O. in past taxations. Delivery charges were to have been restricted to bulk or urgent materials. In the absence of evidence of extraordinary factors, reduce these per my discretion. The charge for trial exhibits should be reduced somewhat because of a lack of evidence of reasonable necessity linking the charges to specific trial items. The charge for "other expenses" in the Trial Division, $869.35, breaks down, in part, per question numbers 180-83 at pages 49-51 of the Stratton cross-examination, to $363.00 for Mr. Cameron's economy airfare for the Ottawa motion and for which entitlement is the issue, $75.00, $7.48, $6.00 and $141.31 for witness fees/conduct money, taxable travel, binding and online charges respectively and a balance of $276.56 which should be reduced for lack of detail. Similar concerns apply for the $737.55 in the Appeal Division. The Plaintiff, at this point, recalculated the $737.55 ($689.30 + $48.25 GST) to $185.14 incl. of GST to be taxed. The Defendant reiterated its arguments re. lack of detail for this $185.14. Mr. Stratton confirmed in cross-examination that he left the firm before the Appeal Division proceedings. Therefore, his evidence concerning that portion of costs is weak. For meals, question numbers 184-210 at pages 51-60 of the Stratton cross-examination establish that over $800.00 were associated with trial. Specifics of the breakdown, ie. see question numbers 194-97 at pages 54-5 and 207-9 at pages 58-9, even after cross-examination, were sketchy. With the exception of Mr. Urey who travelled from the USA, these people, ie. counsel, client, witnesses, student, etcetera, would have eaten lunch anyways. As meals are not taxable, eliminate them. Otherwise, reduce them for lack of proof. The Defendant produced, at taxation, a letter dated August 27, 1997, from Plaintiff's solicitor to Defendant's solicitor, answering outstanding questions from the Dableh cross-examination. Paragraph number 5 notes fees of $629.00 and disbursements of $10.97 are not related to this litigation. Therefore, the $77.70 for the telephone calls in the Appeal Division should be reduced by $11.74 ($10.97 + $0.77 GST): Plaintiff agreed to $65.96.
Disposition
[56] I allow (incl. GST):
TRIAL DIVISION APPEAL DIVISION
phone $364.46 phone (reduced) $65.96
telecopy $460.86 telecopy $35.97
copies (reduced) $9,000.00 copies $1,236.49
copies $971.20 copies $17.12
agency $1,138.26 agency $64.35
postage $56.00 postage 1.50
delivery (reduced) $650.00 delivery $138.54
trial exhibits $555.87 other expenses (reduced) $185.14
other expenses $869.35 meals (reduced) nil
meals (reduced) $150.00
The material on file is considerable. It leaves the proof for items, or portions thereof, as less than absolute. The Carlile decision supra, and the line of decisions therein assert my view of taxation that taxed results of zero dollars, given that real dollars were obviously expended to move litigation along, are not reasonable. Conversely, successful litigants cannot presume complete indemnity as a function of less than absolute evidence. It would be simplistic to eliminate categories, ie. meals, except for valid reasons because the threshold is always what the litigation warranted at the time and not some general exclusion, incapable of adapting to the particular circumstances of the litigation, arbitrarily applied in hindsight.
[57] Paragraph number 56 of the Stratton affidavit disclosed that long distance telephone calls "were made to Messrs. Inch Easterbrook, lawyers for the Dr. Dableh in Hamilton, Ontario and to witnesses and potential witnesses as well as court officials over the course of the litigation." On the evidence, I have no doubt that contact with the Ontario Court solicitor was prudent in balancing the relief sought in different jurisdictions. Equally, I recognize that Plaintiff's solicitor is an experienced and responsible practitioner in this Court. However, in the absence of line by line accounts of individual conversations, the Defendant and I, and Plaintiff as limited by memory recall, can only speculate on the extent of relevance. For example, the Draft Statement for the period ended 03/05/90 in Exhibit B to the Stratton affidavit discloses a toll call to Hamilton, to or from a M.A. Waraksa, for $12.07. The Draft Statement dated May 25, 1990, billing the client, includes said $12.07 as a disbursement for "Telephone Charges". Plaintiff, and likely Defendant, may recognize this name. On the evidence, I do not. The reference to Mirek Waraksa in the July 24, 1990 billing, suggests someone within the firm. The initials "MAW", in upper case, appearing on the May 25, 1990 billing, suggest a lawyer or someone with authority. The identity of this individual may be sufficient, or not, to infer purpose. The work represented by said $12.07 was likely relevant but the materials limit, or preclude, me from confirming that with certainty. I allowed the amounts above on the basis of my appreciation of what was reasonably necessary at each stage along the continuum of this litigation. The various disbursements surface throughout in the billings to the client. Plaintiff had emphasized the manner in which reference number 5841-3, for the December 31, 1990, entry in Exhibit B to the Stratton affidavit, could peg Federal Court costs as distinct from other jurisdictions' costs. However, Exhibit B contains billings to the client, such as the one dated November 19, 1990, including entries which could confuse as to purpose, ie. "letter re: provincial actions" under reference number 5841-3.
[58] The November 19, 1990, statement bills for Mr. Cameron's time to travel to Ottawa. The $363.00 for his air fare does not show up until the 2/27/91 statement and then under "Miscellaneous". This simply highlights the difficulty, sometimes, in lengthy lawsuits in crystallizing, step by step, the associated costs. The spreadsheets were useful as an overview of costs presented for taxation and as broken out from the billings to the client. They were of varying use for inferring reasonable necessity. For example, I read each billing in chronological sequence and compared disbursements within each to the professional discretion required of counsel at that particular stage. Generally, as each disbursement category arose, ie. photocopies, agency (this for outside copies or for video tapes) etcetera, I could readily accept its relevance in the litigation even if I had to speculate, to some extent, at reasonable necessity relative to the sufficiency of proof herein. In the circumstances, Plaintiff's law firm did well in the consistency of its tracking of costs. That thoroughness, including the candid narratives in billings, made it difficult for me at the July 22, 1992, billing relative to the obligation of an unsuccessful litigant to indemnify an opponent. Said billing included this entry for reference number 5841-3, "Business Meals and Entertainment $865.84". The spreadsheet in Exhibit C to the Stratton affidavit places this within the Trial Division column of $1,210.08. The underlying sheets for this break out $522.71 and $343.13 for "Client Entertainment" and "Taxable Business Meals and Entertainment" respectively. Meals, as a category, are taxable but generally as a function of reasonably necessary travel. The importance of one's ordinary routine, ie. home-made lunches, may warrant consideration if litigation interferes. However, in the absence, as here, of evidence warranting the indemnification for meals by the Defendant, within the scheme of costs in litigation, for people who would have eaten regardless, I restricted meal costs to those associated with travel of witnesses and counsel (the restriction in item G24 addressed only hourly fees of counsel). Entertainment may be taxable but nexus to litigation would seem remote at any time. Specific entries (page 2) of the Draft Statement indicate that "Client Entertainment" was actually "Clients lunch" charged to reference number 5841-3, ie. see 3 entries for 2/06/92. It may be that, but for this litigation, the participants would never have patronized a restaurant for given meals: there is no evidence of this. Regardless, they would have had to spend money elsewhere.
PLAINTIFF'S SUBMISSIONS
Dr. Dableh's disbursements
Dr. MacKay $17,169.58 Miscellaneous
E.R.L. $11,530.00
Andari $16,640.49 1989 $8,881.08
V. El-Khoury $13,000.00 1990 $12,100.95
N. Al-Mutawaly $14,289.40 1991 $11,010.62
A. El-Khoury $4,862.75 1992 $8,303.75
Hustak $500.00 1993 $8,723.96
J3 $8,000.00 1994 $5,991.64
New Orbit $19,194.00 1995 $6,109.21
1996 $21,575.96
1997 $799.25
home office costs $25,497.60
[59] Dr. MacKay reflects Dr. Dableh's involvement in retaining and supervising a variety of people to provide relevant services. The internal workings of the device in issue, and their match to the patent claims, were the issues. Paragraph number 3 of the Dableh affidavit asserts that "Dr. Slemon's evidence was based in part on calculations made by Kyle MacKay, a graduate engineering student at McMaster University". Portions of his expert affidavit do appear to flow from Dr. MacKay's calculations. Dr. MacKay was not a trial witness but his calculations were integral to Dr. Slemon's work, the only evidence at trial addressing forces acting on the garter spring in the SLAR (the Defendant's) method: Defendant did not advance evidence on this. In rebuttal, Plaintiff asserted that his work was preliminary and was not subsequently duplicated by Dr. Slemon, who took the stand to defend it.
DEFENDANT'S SUBMISSIONS
[60] Dr. MacKay did not have his doctorate at the relevant time: the evidence does not establish reasonable necessity for an engineer embarking on a PhD program. Pages 61-71 and, in particular, page 66 of the Dableh cross-examination establish that Dr. Slemon used his own computer model and that Dr. MacKay's work was simply verification. Pages 64-5 and 67 disclose respectively that Dr. Slemon could have done this work and he did not make a request for Dr. MacKay but that counsel did. Paragraph numbers 7 and 8, Part 2, Tab B (the August 27, 1997, letter) of the Joint Book of Additional Documents disclose that no written record of the request exists, but payment of $1,800.00 to date with no cancelled cheques available, against a total invoice of $17,169.58. This information is inconsistent with his answer in question number 269 at page 69 on cross-examination that some $5000-6,000 had been paid. All of this undermines the credibility of Dr. Dableh's evidence and, coupled with the element of duplication, falls short of proof of reasonable necessity. Further, Exhibit B to the Dableh affidavit, Dr. MacKay's invoice, includes $369.58 for "Zerox [sic] copies, travel, incidentals" none of which, on their face, establish nexus to Dr. Slemon's work.
Disposition
[61] I allow nothing. That Dr. MacKay did not yet have his doctorate was irrelevant as long as he was qualified to provide the relevant service. On the evidence, Dr. Slemon could have prepared his report without the necessity of Dr. MacKay's expertise. The Carlile decision supra, applies: items are not assessed in hindsight but rather against the circumstances existing at the time. I could not resolve the apparent inconsistency between paragraph number 3 of the Dableh affidavit asserting that Dr. Slemons' evidence flowed partially from Dr. MacKay with the Dableh cross-examination suggesting that Dr. MacKay's work was in the nature of verification.
PLAINTIFF'S AND DEFENDANT'S SUBMISSISONS
[62] For E.R.L., Plaintiff reiterated the argument above for Dr. MacKay. Paragraph number 4 of, and Exhibit C to, the Dableh affidavit confirm that part of William Dovey's evidence was based on "research collected and conducted by Dr. A. Kubursi of Econometric Research Limited". In rebuttal, Plaintiff argued that Dr. Kubursi and Dr. MacKay were analogous to experts necessarily retained for trial but who ultimately do not testify. Their fees are taxable because their preparatory work was prudent at the time. Hillsdale Golf & Country Club Inc. v. The Queen [1979] 1 F.C. 809 and Scott Paper Co. v. Minnesota Mining & Manufacturing Co. (1982), 69 C.P.R. (2nd) 205 establish that the fact that neither testified does not preclude taxation of their work as it related to the preparatory phase of the evidence of Dr. Slemon and William Dovey. In reply, Defendant reiterated its argument above for Dr. MacKay. Dr. Kubursi did not file a report or give evidence. Therefore, Plaintiff's cites supra are distinguishable. Mr. Dovey did not refer to his work in his affidavit or in his docket. Question numbers 284-317 at pages 71-76 of the Dableh cross-examination undermine the credibility of Dr. Dableh's evidence by establishing that the invoice has not yet been paid; there are no records of how or why he was hired (confirmed in the August 27, 1997, letter); although it has not yet been used to date, it has potential application in other litigation; that details of the invoice and of Dr. Kubursi's expert qualifications relevant to the subject are not in evidence and that Dr. Dableh, and not Mr. Dovey or Mr. Urey, proposed him as an expert.
Disposition
[63] I allow nothing. The invoice at Tab C of the Dableh affidavit includes $3,200.00 for preparation of "background materials for the estimates of Mr. Dovey". The answer to question number 315 at page 76 of the Dableh cross-examination reads:
| A. I propose to Mr. Cameron to use Dr. Kabursky [sic] as an expert witness, and I believe initially said, "Yes," he probably is a potential witness. He did the work, and we finally decided to use somebody from Price Waterhouse who has the cost accountant expertise, and we decided to go with him. So we end up not using Dr. Kabursky [sic] as an expert witness. |
As above, I simply concluded that, although this cost would not have occurred but for this litigation, Plaintiff still had an obligation, under an umbrella of austerity in costs, to be selective in decisions to proceed with given disbursements.
APPELLANT'S / PLAINTIFF'S SUBMISSIONS
[64] The Appellant noted that the services of Mr. Gaby F. Andari, Ms. Vivian El-Khoury, Mr. Nafia Al-Mutawaly and Mr. Abdallah El-Khoury addressed the organization, photocopying and binding of documents by third parties, and not the law firm. The Affidavit of Documents, as filed, confirms the volume of documents. Paragraph number 5 of the Dableh affidavit summarizes Mr. Andari's work, ie. including preparation of a database to locate documents. The charge of $0.15 per page for photocopies in his February 25, 1990, invoice (Exhibit D) was more economical. The increase to $0.20 per page in the December 4, 1991, invoice was still cheaper. In rebuttal, Appellant noted that pages 81 et seq of the Dableh cross-examination adequately explain what was copied. Paragraph number 7 of the Dableh affidavit confirms that Ms. El-Khoury "assisted me with secretarial services in conducting the litigation ... included typing correspondence, searching for and photocopying documents, sending faxes and couriers and other clerical duties". Paragraph numbers 8-11 confirm that Mr. Al-Mutawaly generally assembled documents for the Federal Court of Appeal, ie. six copies of 26 volumes of trial transcript, and 13 volumes of trial exhibits, all for filing, copies of a book containing extracts of trial transcript and exhibits for use, relative to Appellant's Memorandum of Fact and Law, by the Judges and by opposing counsel and copies of legal authorities cited in said Memorandum. Exhibit F to the Dableh affidavit breaks down the photocopies ($0.10 per page) and binding (various rates) in litigation generating voluminous materials. The invoices for $3,512.00 and $5,600.00 address preparation of the two-volume set correlating the Appeal Book and the Memorandum of Fact and Law, thereby reducing three boxes of books to about 10 inches of material for efficient focus by the Judges and opposing counsel. The extra time reflected in the invoices for this service, as opposed to the $1,519.20 for the legal authorities, was because it required more than just straight photocopying. As well, the cost of preparing the legal authorities was relatively higher than for copying the transcript and exhibits because the former required sorting and tabbing. In rebuttal, Appellant noted that Respondent's counsel did not refuse his copy of the correlative document nor declare it unnecessary. It expedited the pace and efficiency of the hearing. Paragraph number 12 of the Dableh affidavit confirms that Mr. El-Khoury assisted Mr. Al-Mutawaly with his various tasks.
RESPONDENT'S / DEFENDANT'S SUBMISSIONS
[65] The Respondent argued that none of these services were reasonably necessary and that Tariff B precludes them. Question numbers 388-92 at pages 87-9 of the Dableh cross-examination indicate that the portable computer, for litigation support by Mr. Andari, originated with the Ontario Court litigation. Question number 400 at page 91 discloses that he "used the same Affidavit of Document [sic] in the other actions". Page 79 of the Dableh cross-examination and the August 27, 1997 letter disclose that there was only a verbal agreement and that Mr. Andari is his cousin. Question number 328 at pages 78-9 confirms the lack of detailed dockets: there could be double billing, ie. the labour charge of $40.00 hour in Exhibit D to the Dableh affidavit could duplicate a labour component in the photocopy rates of $0.15 or $0.20 per page used in Mr. Andari's invoices. For example, Mr. Al-Mutawaly billed labour at $20.00 per hour and photocopies at $0.10 per page. The greater discrepancy in rates for Mr. Andari could suggest that he double billed for his labour. For this and others, the lack of specificity for purpose, ie. for photocopies, whether 1 set of 5 or 5 sets of 1; for law firm or client; for outside agent; etcetera, generally undermines the credibility of the evidence. Question numbers 402-6 at pages 91-2 of the Dableh cross-examination disclose that Ms. El-Khoury is his sister-in-law. Question numbers 407-9 at page 92 disclose lack of a written agreement and instead only a general agreement for about $500-$600 per month depending on what needed to be done. Question numbers 410-17 at pages 92-3 and the August 27, 1997 letter disclose that documented confirmation of payment was precluded by use of a chequing account not returning cancelled cheques. Exhibit E to the Dableh affidavit consists of two receipts from Ms. El-Khoury for $7,000.00 and $6,000.00 with no detail whatsoever as to rate or number of hours. Likely, her cost is duplicated in the Dableh miscellaneous dollars. His cross-examination at pages 95-6 did not clarify the vagueness of the evidence as to her purpose. Of the $14,289.40 presented for Mr. Al-Mutawaly, the $3,658.20 for July 14-31 1995, to copy and bind volumes of the trial transcript and exhibits, was reasonable given the removal, before the draft Bill of Costs was filed, of double-counted photocopies to arrive at the $1,236.49 presented above. The invoices of $3,512.00 and $5,600.00 to prepare correlative documents are not taxable because it was a luxury and therefore not reasonably necessary. Dr. Dableh could have done it himself. Per question numbers 446-49 at page 98 of the Dableh cross-examination, these include $120 for binders, as opposed to elastic bands or a file, to hold the loose leaf master. Question numbers 450-64 at pages 98-101 confirm the lack of evidence verifying specifics of number of hours, breakdown of tasks, basis for setting a rate and why his rate increased from $20 per hour to $30 per hour for the second invoice. The August 27, 1997 letter further confirmed the lack of written records. Of the $1,519.20 invoiced to copy the case law, Defendant consents to $1,015.20 based on $0.10 per page and $5 per volume. This last invoice (March 21-30, 1996) contains more detail than the first (July 14-31, 1995). However, the evidence is still problematic because sorting in the former was bound up in the photocopy rate of $0.10 per page whereas, in the latter, sorting is billed separately at $6 per binder. As well, the binding rate increases from $5 per volume in the former to $20 per volume in the latter without explanation. Mr. El-Khoury's invoice for June 1995, Exhibit G to the Dableh affidavit, contains no breakdown of tasks performed or materials photocopied. Question numbers 480-82 at pages 103-104 disclose he is Dr. Dableh's brother-in-law. Question numbers 483-501 at pages 104-107 disclose the absence of written agreement; training in medicine; lack of written records of payment: note also the August 27, 1997 letter; lack of specificity of dates and number of hours worked and rate applied, ie. $20 or $30 per hour, for essentially a quality control function. An unspecified arrangement with a brother-in-law trained in medicine to perform quality control in litigation addressing nuclear technology cannot be stretched to taxable indemnification. If taxable, an hourly rate of $20-$30 per hour is excessive because that realizes $61,920 per annum based on a 40-hour work week, ie. 4.3 work weeks per month for what was essentially clerical work.
Disposition
[66] I allow nothing; nothing; $8,185.40 ($3,658.20 + $3,512.00 + $1,015.20) and nothing respectively for Mr. Andari (Trial Bill); Ms. El-Khoury (Trial Bill); Mr. Al-Mutawaly (Appeal Bill) and Mr. El-Khoury (Appeal Bill). These third parties performed work historically addressed within the ordinary partial indemnification of the professional fees associated with the solicitor having conduct of the litigation. It was open to Dr. Dableh to devote his personal time to organizational work so as to reduce the potential hours billed to him by his lawyer. The personal time of a litigant is not taxable: the element of profit precludes it. The issue was whether the scheme of costs contemplates full indemnification for the purchase of services from third parties and for whom indemnification is not restricted by the above propositions. I allowed these items if I felt that a solicitor might ordinarily, perhaps with regard to the scale of the work, have engaged a third party selling the service in the market, ie. a lay litigant could not bury the cost of binding in his overhead, the latter not being taxable, but could tax such costs of binding being an expense that, but for the litigation, he would not have incurred. The evidence for Mr. Andari did not satisfy me that the circumstances of this litigation required the displacement of partial indemnity associated with organization of documents by the client's professional representative. The same rationale applies to Mr. El-Khoury concerning copies of the legal authorities. The evidence did not distinguish him as particularly skilled or qualified in this area, other than availability and a family relationship. The allowance to Mr. Al-Mutawaly below was the limit, in my opinion, of appropriate indemnification in this area. I understood Respondent's emphasis on the lack of evidence concerning specific agreements on parameters of, and instructions for, various services as demonstrating that Dr. Dableh himself, to some extent, incurred costs outside the professional guidance of the solicitor having conduct of the litigation and that, regardless of Dr. Dableh's sincerity of belief in their importance to success, this apparent looseness of control over expenditures must diminish Defendant's obligation to indemnify. I evaluated Ms. El-Khoury relative to my Reasons in Mon-Oil Limited v. Her Majesty the Queen in T-266-88 on November 12, 1993, cited in Carlile, supra, and, in particular, to the charge addressed therein at pages 31-32 for Irene Clevering Secretarial Services:
| .... It may be that Plaintiff can operate without ongoing secretarial overhead. It may be that Plaintiff had similar activities caused solely by the events but outside this lawsuit. I do not think that litigants should be permitted to effectively circumvent the scheme of tariff B1(1) by an arrangement removing a function ordinarily found in the office of the solicitor of record and therefore ordinarily associated with the composition of the lawyer's fee. I note, however, that this conclusion likely penalizes Plaintiff if the work was caused solely by the lawsuit. However, the remedy should not be an error in law. The services appear to relate, in part, to the production, in the nature of assembly or binding, of technical material. That could be the expenses of the litigant by another name .... |
[67] The Respondent conceded the $3,658.20 for trial transcripts and exhibits and the $1,015.20 for the authorities relative to Mr. Al-Mutawaly. I allow them (I would likely have approved them if they had remained in issue: these tasks sometimes, but not always, are performed in litigation by third parties). Paragraph number 8 of the Dableh affidavit characterized Mr. Al-Mutawaly's work as "help in assembling documents for the appeal". This blurs the issue of indemnification for personal time of the litigant since I assume Dr. Dableh alone could have done this but over a longer time frame or with more difficulty. As for the correlative book, I found it prudent as a focus for the case to be met by the Appellant. However, Appellant's professional representative alone would have been responsible for preparation of the Memorandum of Fact and Law and, although it was not apparent from the evidence that the solicitor directly supervised preparation of the correlative book, it was unlikely that Mr. Al-Mutawaly, on his own, could plan this scheme of cross-references important to the solicitor's presentation. The invoice totalling $3,512.00 for February 19 to March 7, 1996, breaks out each function by task, hours, rate and materials. I allow it as presented. In contrast, the later invoice for $5,600.00 does not elaborate other than this: "to assist you in searching through documents to prepare the reference to evidence for the appeal". It was headed "For Professional Services" and does not add to the earlier invoice for $3,512.00 implying full charges for a task completed.
PLAINTIFF'S AND DEFENDANT'S SUBMISSIONS; DISPOSITION
[68] Plaintiff argued that paragraph number 13 of and Exhibit H to the Dableh affidavit establish the necessity of Fran Hustak's secretarial services in 1991-92. In rebuttal, Plaintiff argued that arrangements for documents by courier to his solicitor were essential. In reply, Defendant argued that this expense was not taxable and that there was no evidence of detail or reasonable necessity. Question numbers 502-508 at pages 107-109 of the Dableh cross-examination disclose that her role was a matter of convenience (she was a secretary at McMaster University, Dr. Dableh being a member of the faculty) rather than having done the work himself. I allow nothing. The invoices read as if for labour. Question number 503 at page 107 characterizes her cost as "out-of-pocket expenses for things that she had bought". I did not venture an estimate of division between labour (see rationale above for Ms. El-Khoury) and indemnifiable disbursement.
APPELLANT'S AND RESPONDENT'S SUBMISSIONS; DISPOSITION
[69] Appellant noted paragraph number 14 of the Dableh affidavit describing J3 Engineering Research Company Ltd.'s role as a "variety of services for me in 1993 and 1994 in preparing for the Appeal, including searching the evidence at trial to assemble referenced material for the Memorandum of Fact and Law, photocopying necessary pages of trial evidence for books of referenced materials for Court of Appeal hearing, and correlating the same." Question number 520 at page 110 of the Dableh cross-examination discloses that Dr. Dableh owns 51% of this company. Exhibit I to his affidavit is the cancelled cheque confirming payment. At page 109, the cross-examination indicates that this company performed work comparable to Ms. El-Khoury after 1992. Question number 534 at page 112 confirms that he received no money through J3 in 1994. Question numbers 530-31 at page 112 confirm that students employed at J3 were not relatives. Their names were disclosed in question number 2975 at page 453. In reply, Respondent noted the lack of evidence of reasonable necessity, nexus and obligation to pay. Question number 512 at page 109 characterized this as "an agreement to sort of covers [sic] their effort for that period of time. We're looking at, on an average, of $4,000 a year for a total of $8,000. That's a symbolic amount I would say". Question numbers 535-36 at pages 112-13 confirm no hourly rate was set. It is significant that his affidavit did not disclose the information that came out in question numbers 517-20 at pages 110-11, ie. Dr. Dableh is president, a director and own 51% of J3. This work could have duplicated Mr. Al-Mutawaly's. I allow nothing.
PLAINTIFF'S SUBMISSIONS
[70] Plaintiff noted paragraph numbers 15-16 of and Exhibit J to the Dableh affidavit confirming the lease of personal computer and litigation support software from New Orbit Technologies Inc. for "organizing disk versions of the discovery and trial transcripts, word processing for affidavits and supporting documentation and for drafting correspondence in connection with the lawsuit." Given the volume of documents, transcripts and other materials, this was reasonable. In rebuttal, Plaintiff argued that one can infer that the law firm of Inch Easterbrook was his solicitor prior to Sim Hughes: this does not affect reasonable necessity.
DEFENDANT'S SUBMISSIONS
[71] Defendant argued lack of evidence of reasonable necessity. Paragraph number 16 of the Dableh affidavit characterizes use of this computer as "exclusively for this litigation" but question number 549 at page 115 of his cross-examination contradicts this, ie. discloses that it was used for the Ontario Court litigation with the firm of Inch Easterbrook. As well, question number 388 at pages 87-88 suggests that Liam Rafarty of Inch Easterbrook proposed acquisition of a portable computer. Question number 558 at pages 117-18 discloses that this item was a luxury precluding his having to carry the actual documents. Question numbers 540-45 at pages 113-14 confirm the absence of any written contract or other documentation with this company and that, although he stopped making payments in 1992 or 1993, the company still updated his equipment periodically despite no written agreement and payments in arrears. This is simply not credible. Question number 560 at page 118 confirms that he acquired this personal computer before his solicitor of record was involved in this litigation. Exhibit J to his affidavit confirms the $19,194.00 claimed covers a lease period predating this litigation and continuing after Judgment in 1996, and during lulls as well, ie. on reserve with Muldoon J. and with the Federal Court of Appeal. None of this is taxable.
Disposition
[72] I allow nothing. The activities in paragraph number 16 of the Dableh affidavit read like a primer for a solicitor, except that they are presented for indemnification associated with Dr. Dableh's direct efforts. Ordinarily, partial indemnity for fees of the solicitor, within the scheme of costs, will address this. There was nothing in the evidence concerning the circumstances of this litigation to convince me otherwise.
APPELLANT'S / PLAINTIFF'S SUBMISSIONS
[73] Appellant characterized the miscellaneous costs of Dr. Dableh as akin to a "shoebox" accounting approach for a variety of things over the course of this litigation. Page 1 of Exhibit K to the Dableh affidavit is a summary spreadsheet subsequently adjusted, further to his cross-examination, to remove personal items or those related to other litigation. His cross-examination simply buttressed the validity of various items in paragraph number 17 of his affidavit, ie. photocopies, mileage, air travel, sundries, long distance, parking, courier, binders, paper, pens, etcetera. Some are left to the Taxing Officer for evaluation, ie. meals to entertain potential investors to finance the litigation. If taxable, exercise my discretion as to amount. Generally, this litigation was about a lone individual versus a large corporation and therefore, in the circumstances, the evidence presented established reasonable necessity. As for the home office costs, paragraph number 18 of the Dableh affidavit confirms the conversion of part of his residence to an office dedicated to this litigation. Dr. Dableh attributed 15% of his expenses for the entire home, ie. mortgage interest, taxes, heat, electricity, water and insurance, to said home office and, of that, estimated 80% applied to this litigation. The $25,497.60 should be taxable given the responsibilities assumed by Dr. Dableh.
[74] In rebuttal, Appellant argued that the unusual nature of this litigation justified a home office, for the client, to personally organize and collect documents. If his lawyer had done this, higher costs incurred by Dr. Dableh in the first instance, and ultimately by Ontario Hydro, would have resulted. The isolation of discrepancies by year is misleading because, overall, the costs were reasonable. In cross-examination, Dr. Dableh confirmed that his solicitor had instructed the performance of certain tasks despite the absence on the record of documentation to that effect. His cross-examination was somewhat damaging but generally it confirmed diligence in keeping records and justification of the expenses. His cross-examination was the most detailed of its type ever in this Court and he came off quite well. If there were irrelevant claims, it removed them as a result leaving only relevant charges presented for taxation. The issue of financing, ie. meals, airline and Bell Canada toll charges, is novel in costs because Dr. Dableh could not have paid for this litigation personally in the first instance, ie. he could not have proceeded otherwise. At taxation, Appellant's solicitor received permission to file subsequent material in response to Respondent's spreadsheets addressing the inconsistency of Dr. Dableh's calculations. By letter dated October 10, 1997, Appellant noted that some original receipts for 1989-96, available for inspection during his cross-examination, were inadvertently not copied for his affidavit; that Respondent in its addition ignored some receipts difficult to read; that there were errors in its addition and that some totals had not been adjusted after removing some receipts prior to executing the affidavit. As well, for 1997 relative to the taxation of costs, expenses additional to the $799.25 already presented total $3,497.38, ie. meals, parking, travel, photocopying, office supplies and Mr. Al-Mutawaly's clerical help. The adjustment for the Dableh miscellaneous, and reflecting corrections for meals and parking, are: 1989 = $8,232.09; 1990 = $11,427.36; 1991 = $11,014.48; 1992 = $8,232.59; 1993 = $8,382.10; 1994 = $6,113.22; 1995 = $5,891.80 and 1996 = $21,666.64.
RESPONDENT'S / DEFENDANT'S SUBMISSIONS
[75] By letter dated October 27, 1997, Respondent argued that Appellant's "admission of further mistakes and omissions in the materials submitted by the plaintiff is telling given the prior claim by the plaintiff, on cross-examination, that the materials had been reviewed in detail and any questionable claim had been removed" and that this "admission and further mistakes and omissions in the most recent materials submitted ... undermine the credibility of the plaintiff such that the plaintiff has failed to discharge the evidentiary burden placed on him to substantiate his claim". Specifically, (i) these most recent receipts cannot be received at this late date given the failure, despite the opportunity at three stages to do so, to introduce them, ie. first, via the Dableh affidavit; second, via exhibit on cross-examination and third, via exhibit at oral hearing of the taxation; (ii) there was no obligation by Ontario Hydro "to sort through a box of "original" receipts for the purpose of rectifying omissions in the plaintiff's affidavit materials"; (iii) even if these receipts were properly before the Court, there is a complete lack of evidence of reasonable necessity; (iv) similar submissions apply to the claim for additional expenses on the taxation with the added comment that (a) parking receipts are particularly deficient relative to mistakes in addition, ie. the invoices total $93.00 and not $110.20, and to lack of details for dates, addresses, times and relevance, ie. cross-references by date or location to event dates and (b) meals are particularly deficient relative to errors in calculation, lack of nexus by date or location to event dates, excessiveness, identification of participants and double recovery and (v) similar submissions apply to the inadmissibility of the invoice from Mr. Al-Mutawaly with particular regard to lack of proof of reasonable necessity, hours worked and hourly rate.
[76] Respondent objected to all miscellaneous items. Generally, the Dableh cross-examination did not resolve the lack of detail in, and organization of, exhibits, ie. no pagination, poor quality of the copies, no correlation to expenses, errors (some of which were conceded). The "shoebox" approach, ie. see question number 675 at page 143 of his cross-examination: apparently, he threw receipts into some storage receptacle if it related to this litigation, requires us to trust him. Question numbers 1298-1330 at pages 243-50 disclose that he cannot now confirm the identity or purpose of individual items. Further, there is no evidence that his solicitor authorized or required these disbursements. Garden filters, outside fences and a furnace filter are examples of items, clearly unrelated to this litigation, which he initially threw into the "shoebox" to be accepted as relevant on the face of his affidavit as sworn but for which he backed down when confronted on cross-examination, ie. question numbers 2214-16 at page 361 re. the furnace filter. In a case in which the affidavit evidence was not, as here, contradicted via cross-examination, Feherguard Products Limited v. Rocky's of B.C. Leisure Ltd.[1994] F.C.J. No. 2012, Stinson T.O., at paragraph numbers [5] to [7] articulates the test to apply:
| [para5] In the context of taxation between these litigants, Defendant's material strikes me as a "shoebox" approach. That is, receipts and chits have accumulated over several years but without any ongoing or current posting which might have immediately labelled them with a purpose and organized them so as to permit some meaningful reconstruction and association with events in the litigation. Instead, we are left with the Green affidavit which operates as a mechanism to sort clusters of chits and invoices but not much more. I temper that comment somewhat in that that Defendant correctly noted that the cost of proving some items can often exceed their worth. Some balance should be struck. |
| [para6] The Green affidavit did impose some order to the mass of paper by grouping items by category and, given the absence of complete dates in some instances, chronology. Each category is an exhibit and is associated with a brief numbered paragraph in the affidavit. The latter does not explain or interpret its particular exhibit so as to permit the respondent at taxation or the disinterested Taxing Officer to independently assess, other than for given invoices in which purpose i.e. transcript and nexus are obvious, the validity of expenditures. For example, the upper half of the second page of Exhibit B is a copy of a chit with three pieces of information none of which, beyond the category of postage, relate to purpose, client file identification or year incurred (except per its date sequence relative to other chits in the exhibit) i.e. "Postage"; "22 Oct." and "$0.73". The fourth page of Exhibit E identifies the precise date and length of Plaintiff's discovery: that date appears in the Bill of Costs. In contrast, the date of Mr. Sovernigo's discovery is not in the Bill of Costs. Given my reaction to the state of the evidence, I am not surprised because it is not crystallized in the Green affidavit. By reading the entire Court file, I found the date, May 25, 1988 in paragraph no. 6 of the affidavit of Hubert Lai (Doc. no. 502) sworn and filed April 30, 1992 for an interlocutory purpose (paragraph no. 3 of the affidavit of Thomas W. Bailey sworn October 2, 1992, Doc. no. 516, had the same information). However, I could find no information concerning duration although I did note other material confirming duration of Plaintiff's discovery. |
| [para7] Essentially, Defendant has presented a pile of records and invited Plaintiff and the Taxing Officer to try and make sense of them on the basis that, since they were paid and since the Green affidavit has made a bald and uncontradicted assertion of relevance, they must be indemnified in any event as a matter of course. That position is untenable. However, my Reasons for Taxation dated June 15, 1994 in T-552-88: Canadian National Railway Company v. "Jervis Crown" et al. and a series of my Reasons cited at page 2 thereof make it clear that the scheme of costs in litigation is best served by an approach not predicated on a narrow or technical threshold. However, the greater the extent to which a taxing party relies on that precept i.e. in the face of less than complete, as here, proof, the more it must live with the result, necessarily conservative to preclude prejudice to the respondent at taxation, of the consequent discretion exercised to compensate for insufficiencies in the material. For this item, there is no hard evidence of duration. My Reasons supra will shape my approach to this Bill of Costs as a whole. Defendant's counsel is an officer of the Court and I have made it clear in the past that, given the rough and ready aspect at times of taxation, I will permit limited supplementation of facts in the oral submissions at taxation. I allow this item as presented. |
[77] Respondent argued that most of the meals related to financing efforts. This is a common theme throughout: they are not taxable. Several predate the litigation, occur during lulls, ie. decisions under reserve or after the appeal judgment, and include quick meals for himself or for meetings with co-workers. Several related to meetings with Inch Easterbrook: they are not taxable. The evidence does not establish reasonable necessity for those meals with his solicitor of record herein. His cross-examination confirmed lack of evidence for purpose, location, participants or topics. Some receipts have no information at all thereby precluding any independent and meaningful evaluation of relevance. Some were clearly inappropriate on their face yet were presented in his affidavit, ie. see question numbers 2186-87 at page 358 concerning chocolates for Inch Easterbrook, or Fran Hustak. Several were for alcohol or theatre tickets relative to financing efforts, ie. question numbers 2189-95 at pages 358-59 or question numbers 2471-72 at page 393. There was one for a celebration party after the Federal Court of Appeal decision. There are discrepancies between amounts presented and totals of invoices, after cross-examination. The Respondent prepared spreadsheets, analyzing meals, parking and telephone calls, at Tab 4B of the Joint Book of Additional Documents filed October 28, 1997 (hereafter the Joint Book). Thus, Exhibit K, sheet 1 to the Dableh affidavit presents $1,767.41 for meals in 1989 but, after cross-examination, that total shrinks to $1,067.41. The Respondent objected specifically to meals with his Federal Court solicitor: they occur during lulls and lack evidence of necessity. The other categories of meals, ie. meetings with Inch Easterbrook or for financing, are simply not taxable. The size of discrepancies varies, ie. 1992 less than 1989.
[78] The Respondent noted that most of the parking receipts are for Hamilton, Toronto or Burlington. Claims for McMaster University relate to a faculty parking pass, ie. see pages 305, 323 and 413 of his cross-examination. Question number 1758 at pages 305-06 discloses a speeding ticket. Question numbers 1271-80 at pages 234-36 disclose a parking ticket. Both are clearly inappropriate in a bill of costs. The cross-examination confirms lack of evidence for participants, purpose and relevance. Any McMaster University and Hamilton (his Ontario Court solicitor) charges are simply not taxable. The lack of detail precludes assessment of whether meetings in Toronto with his solicitor of record here were essential. The 1989 figures predate this litigation. The spreadsheets at Tab 4B of the Joint Book again demonstrate discrepancies, by year, between amounts presented in Exhibit K to his affidavit and totals after cross-examination.
[79] The Respondent argued that the evidence for travel costs essentially equates to nothing thereby precluding independent and meaningful assessment. As for post and courier, there is no evidence of reasonable necessity and correlation to this litigation, as opposed to litigation coincident in other jurisdictions. The cross-examination is replete with examples, ie. question numbers 2539-42 at pages 400-401 or numbers 738-42 at pages 155-56, disclosing that he used a courier to make deposits to credit unions because of convenience. There is no evidence to justify courier instead of mail. Question numbers 716-21 at pages 151-52 disclose some courier charges related to financing. The receipts in evidence for supplies/miscellaneous lacked details of what was bought, purpose and relevance to this litigation. The cross-examination confirmed that some claims were clearly excessive or lack proof, ie. stationery or Home Depot. Question numbers 2274-77 at pages 368-69 disclose $402.48 for a desk, after the trial, to make him more comfortable. This is inconsistent with concessions elsewhere removing items such as a frying pan or question numbers 1342-48 at pages 252-53 in which Dr. Dableh would not concede removal of a book entitled "Micro Robert Poche Nouvelles" which he thought might be a pocket French dictionary. The cross-examination discloses that he claims, as relevant to this litigation and therefore indemnifiable by Ontario Hydro, renewal of passport photos (question numbers 1512-16 at page 274 which include his wife's renewal: he removed $12.35 on cross-examination), purchase of University of Toronto insignia, Pro Hardware seasonal items, flowers (question numbers 2473-77 at page 393 re technical assistance) and a ticket to see the movie Nixon (question numbers 2455-58 at page 391 re financing).
[80] The Respondent argued that airfares related to financing: the cross-examination confirmed lack of evidence of reasonable necessity. For xerox and facsimiles, the evidence lacked details for purpose and relevance given large amounts elsewhere in the bill of costs for these categories of service. Question numbers 1517-20 at pages 274-75 disclose a working copy and a records copy of the transcript for Dr. Dableh: that is a luxury. The category, professional services, is misleading because it includes payments to a brother and brother-in-law relative to financing, ie. question numbers 961-69 at pages 188-89 (health insurance) and numbers 1186-1212 at pages 221-25 (cellular telephone and errands). The health insurance predates this litigation. Receipts in this category, the evidence is unclear as to whether they belong elsewhere, include moving his brother to Montreal and textbooks for his brother. Items inappropriate on their face include a prospectus for financing, ie. question numbers 970-73 at pages 189-90. The cross-examination disclosed that most of the expenditures for Bell Canada related to financing out of Florida or California and therefore are not taxable. Again, amounts presented in Exhibit K to his affidavit and then reduced upon cross-examination highlight inconsistent evidence. Note the spreadsheet in Tab 4B of the Joint Book: Dr. Dableh claimed $2,645.28 in Exhibit K for 1989; he estimated in cross-examination that 5% = $132.36 of that related to this litigation and the above spreadsheet crystallizes an actual amount of $3.13 + $52.34 = $55.47 which is considerably less than the $132.36. The same holds for the other years thereby undermining credibility of the evidence.
[81] The Respondent argued that an office in Plaintiff's residence was a luxury. Materials could have been stored and managed elsewhere, ie. at his solicitor's office. Question numbers 562-86 at pages 118-25 of his cross-examination disclose that the home office expenses predated the start of this litigation and continued after Judgment in the Federal Court of Appeal. The formula used is not a reasonable allocation, ie. the floor space for the home office is less than 10% of the house yet he claimed 15% for the home office, of which he allocated 80% to this litigation. This portion of the cross-examination confirms that it was used for other litigation, that it was dormant at times, ie. a lull waiting for the Trial Judge to render judgment, and that he did not meet his solicitor or the experts there. The Ontario Court action dominated 1987-90. He used his house for storage of documents from all of his actions: his formula, by excessively overstating need and estimates, does not reflect that pro rata. The formula uses insurance despite lack of evidence. Tab 4A in the Joint Book, copies of utility and city tax receipts, further demonstrates the inconsistency of his formula, ie. the City Tax receipt for 1992 shows $4,034.82 whereas $4,680.00 was used in the formula. The Mississauga Hydro-Electric Commission bills for two months at a time. Therefore, the $116.79 in the May 23, 1992 statement times six = $700 approximately. Given ordinary fluctuations, $1,000.00 approximately might have been feasible but not the $2,000.00 used in the formula. The two Regional Municipality of Peel water and sewer bills for 90/01/30 to 90/08/01 total $182.69. The billing for twelve months should approximate twice that, ie. $365.38. Instead, the formula uses $600.00. These inconsistencies are relevant only if the home expenses are taxable, which they are not. Generally, the approach to the miscellaneous and home office expenses should not be an allowance of some dollars as a significant reduction of the amounts claimed because the evidence discloses that Dr. Dableh was simply including every expense and not, as he suggested, discriminating between litigation and non-litigation, ie. 10% or $2,549.76 of the $25,497.60 claimed for home expenses would still be improper because such expenses are not taxable in the first instance.
Disposition
[82] As noted below, I allowed only minimal amounts. Dr. Dableh's counsel, an experienced and skilled professional, assured me orally at taxation that the expenditures were made within the umbrella of the solicitor of record's direction. I read each and every one of some 1,600 plus receipts (as well as the many additional ones submitted in the Joint Book subsequent to the hearing) in Exhibit K to the Dableh affidavit, individually and in turn as I found them. Cumulatively, many stretched credibility, and coloured almost all of the others having no detail whatsoever as to participants, purpose or relevance to the extent that, Ontario Hydro and myself, left almost wholly dependent on Dr. Dableh's judgment as to reasonable necessity, were not inclined to approve them. Globally, I did not tax off the entire amount, as suggested by Defendant, because that might have ignored Dr. Dableh's efforts to limit the cost of litigation by taking on certain tasks himself rather than leaving them to his solicitor's office. Therefore, I examined the expenditures, by category or task, along the continuum of this litigation, to determine whether the amounts, fees or disbursements, allowed to this point, within the scheme of partial indemnification for party and party costs, should be augmented.
[83] Two novel issues, financing and the home office, warrant particular comment as to why I rejected them. Technology and streamlining are significant today: the practice of law and the phenomenon of litigation have reacted in measured stages. An example is the use of computer-assisted research of jurisprudence outlined in Recovery of Legal Research Expenses in Taxations and Assessments of Costs, the Advocate, Vol 55, Part 1, January 1997, page 79, by Lisa A. Peters. Dr. Dableh argues that he had to dedicate four-fifths of 15% of his personal residence solely for this litigation. The difficulty that I have with pegging Ontario Hydro as the party to indemnify him for this is that (i) at least some of the fees in Column III of Tariff B encompass, by implication, the office structure of the solicitor of record and therefore a home office strikes me as duplication and (ii) Dr. Dableh would have had to pay disinterested third parties such as Consumers Gas regardless, ie. absent the litigation, he could not have discounted his monthly utility bills by four-fifths of 15%. Therefore, this scenario generates profit by costs, a violation of a basic principle of the scheme for indemnification between litigants: there was no evidence that he would not have otherwise used said space for personal needs. Simply put, Dr. Dableh appeared to assert a discount, during the life of this litigation and to be borne by Ontario Hydro, on the outfitting and operation of his personal residence until challenged on cross-examination. To extrapolate this to an absurd end, he should have convened a sale of any remaining assets within the umbrella of the four-fifths of 15% to generate a credit in favour of Ontario Hydro. I did not pursue this notion. As for financing, and judging by the number of meals and toll calls throughout, there were several participants but not one name of any investor, potential or actual, nor accounts of funds raised, were disclosed on the record. Simply put, Dr. Dableh asserts that he did not have the money to initially fund this litigation regardless of potential indemnification and therefore, to raise it, he engaged in a series of financing ventures for which Ontario Hydro should indemnify him. On the evidence, they appear to have been largely speculative, but they do represent a serious issue for resolution.
[84] Reading each invoice or receipt in Exhibit K, in turn by year for 1989-97 inclusive, against a time frame of May 18, 1990 (date of institution) to October 2, 1997 (final day of taxation), I concluded generally on the face of approximately 180 receipts in evidence for 1989 that: (a) there were several that could have been for anything, ie. source unidentified or, if identified, ie. Canada Post, parking, McMaster University, purpose and/or participants not identified; (b) there were some, ie. Faculty Search Committee in the Department of Electrical Engineering at University of Waterloo, for which remote nexus such as potential experts in advance of institution might be established, but was not, and I did not speculate; (c) there were unexplained bills of lading between Dableh family members, ie. Fredericton and Mississauga; (d) some stretched credibility from the perspective that this litigation alone drove Dr. Dableh to incur these particular expenses (the following list in this category for 1989 and the listings below for the other years were not exhaustive) ie. $141.11 for meals (my guess) at Whalers Wharf; $144.32 at The Hungry Fisherman; and $78.00 on February 18, 1989 (1 year, 3 months prior to institution) for insurance for individuals (names of Mr. and Mrs. El-Khoury barely legible) and (e) no dollars were taxable on their face despite a most liberal reading consistent with Re Eastwood (deceased), supra, which should be the guiding principle. The receipts noted as stretching credibility for this year, and following years, undermined my inclination to give credence to others impossible or difficult to identify relative to purpose or participants.
[85] Again, I concluded for approximately 253 receipts in evidence for 1990 that: (a) several displayed similar elements of obscurity for purpose and participants; (b) some similarly stretched credibility, ie. $11.50 for a parking fine; parking at Mississauga Hospital on some unspecified date; $180.00 for annual parking decal at McMaster University; provincial park pass and $15.00 for Dennis Marcon's stag; (c) many were for meals yet no participants were identified; (d) nexus seemed remote for trips to New Hampshire and Quebec; and (e) no dollars were taxable. Meals were particularly vexing because I would have had to conclude that he patronized, and paid for others to join him, for wholly unidentified purposes but presumably related to financing or planning a multi-million dollar venture, establishments such as, and with all due respect to these outlets, Pizza Nova, Swiss Chalet, Burger King, Kentucky Fried Chicken, McDonald's, Pizza Hut, Harvey's and Bulk Barn (several in Mississauga where he lived) solely as a result of this litigation and that he could not have otherwise nourished himself. I rejected this notion.
[86] Again, I concluded for approximately 240 receipts in evidence for 1991 that: (a) several displayed similar elements of obscurity for purpose and participants, ie. for this and other years, bills of lading to his solicitor of record with no justification of amounts over and above those taxed above through his solicitor of record; (b) some similarly stretched credibility, ie. $117.30 at Neighbourhood Florists, $25.59 at Floral Fashions, $64.00 at Etobicoke Musical Productions, $180.00 for annual parking decal at McMaster University, particularly mystifying in this and other years relative both to presentation of day parking receipts for the University (visitors?) and given that he was a member of the faculty regardless of this litigation (there was no evidence that he would have used public transit but for this litigation), $97.50 for a traffic ticket (speeding, I presume, solely because of this litigation), $17.50 and $75.00 for parking violations, Rider Truck rental between Montreal and Toronto and air fare for other Dableh family members travelling with him to Beirut and back (this looked like a family trip, ie. left June 25 and returned August 22); and (c) no dollars were taxable.
[87] I concluded for approximately 205 receipts in evidence for 1992 that: (a) several displayed similar elements of obscurity for purpose and participants, ie. a meal receipt for $11.27 on October 6, 1992, at Canada Life Cafeteria: no street address, for two people and likely in the complex housing his solicitor of record but providing no clue as to how the litigation forced this as an alternative to a regular routine such as home-made lunch; (b) several similarly stretched credibility, ie. $294.00 (increase of over $100.00) for parking permits at McMaster University, $26.65, $29.05 and $31.95 on December 15, 24 and 31, 1992 respectively for alcohol: I have difficulty accepting nexus so close to major holidays and forced solely on account of this litigation, $61.00 for Etobicoke Musical Productions and Bell Canada charges for two different telephone numbers (unclear whether for residence and home office numbers although receipts elsewhere, such as for pizza deliveries, disclose one number as his street address); and (c) no dollars were taxable.
[88] I concluded for approximately 181 receipts in evidence for 1993 that: (a) several displayed similar elements of obscurity for purpose and participants, ie. postage, and Bell Canada to locations in and out of North America, for this and other years with no justification of amounts over and above those allowed above through his solicitor of record; (b) several similarly stretched credibility, ie. $30.00 for a parking or traffic violation, $376.14 for parking permits at McMaster University (I guessed that the increases over several years were not simply a function of rate but that he was buying another pass for some unidentified person known to him), parking receipts for the Hamilton Farmers Market, $10.00 at West End Car Wash Ltd., two alcoholic beverages paid for at 11:45 p.m. on December 15, 1993, at the (Compri) Hotel in some unidentified city, parking still at the Mississauga Hospital, Pizza Hut delivery or carryout in the area of his residence (no address but same GST number as the 10/16/93 Pizza Hut slip displaying his home address), on September 10, 1993 (a Friday night one week before the trial judgment) at 8:52 p.m. continuing a pattern over several years of what appears to be evening meals caused solely as a result of this litigation (I rejected this notion), alcohol purchases, both in clubs and by the bottle, at various times including proximity to major holidays, $160.00 on September 17, 1993 (the date of Judgment) at Olympia Fish Market, $10.50 at noon hour in the McMaster University Cafeteria (again, no evidence as to why this litigation forced him, already a faculty member, to eat lunch there as an alternative to something else, ie. a packed lunch), $120.00 for Show Boat tickets, $50.00 for Scotiabank Christmas Gala, $24.04 and $6.49 for furnace filter and a sprinkler respectively at Canadian Tire, $54.50 for luggage and $1.40 for a Mississauga Library fine; and (c) no dollars were taxable.
[89] I concluded for approximately 118 receipts in evidence for 1994 that: (a) several displayed similar elements of obscurity for purpose and participants; (b) several similarly stretched credibility, ie. $7.57 for McDonald's at 11:45 p.m. on May 10, 1994 (this was one of several meal receipts that I chose to cross-reference to the court file to determine proximity to events in the litigation which, solely, might have driven him to eat, near midnight, in a fast food outlet: May 10, 1994, appeared to fall in the hiatus between the Registry canvassing the parties on October 6, 1993, for confirmation of intention to proceed and Appellant's solicitor responding some 14 months later on December 15, 1994), $253.60 including 2 Mouton Cadet for $53.00 some three weeks later for dinner at Maxwells, $68.88 at Bata Shoes and $58.94 at the McMaster University Bookstore for two books entitled Robber Bride and Den of Lions (nexus escapes me) and (c) no dollars were taxable.
[90] I concluded for approximately 169 receipts in evidence for 1995 that: (a) several displayed similar elements of obscurity for purpose and participants, ie. $5.00 to park in the Canada Life garage: again, I assume the location of his solicitor of record; (b) several similarly stretched credibility, ie. $3.33 for pantyhose (with pencils), $1.20 for Mississauga Library fines, $4.88 for a Scratch & Win ticket and a card at Shoppers Drug Mart, bottles of alcohol throughout the year, $11.49 on May 15, 1995, at 8:30 p.m. for Pizza Hut continuing, and there were examples throughout the years, a pattern of evening meals via commercial eateries in the area of his residence presumably for no reason other than this litigation, $4.25 on Boxing Day to see the movie Nixon in Mississauga (where he lives: again, nexus is obscure), $8.73 at Bulk Barn for Hickory Stix, Cherry Blast and Honey Peanut, $17.25 for roses on Valentine's Day and $15.00 for the annual Kipling Brunch put on by the Electrical and Computer Engineering Society, and; (c) perhaps $50.00 were taxable if I were to stretch the envelope, ie. parking at the Canada Life Building or near it (the Metropolitan Chestnut Park Hotel and others). I allowed $50.00. I could not guess at the purpose for courier charges given allowances above.
[91] I concluded for approximately 260 receipts in evidence for 1996 that: (a) several displayed similar elements of obscurity for purpose and participants, ie. $3.72 on September 17, 1996, for two coffees in the evening; (b) several similarly stretched credibility, ie. $11.00 for West End Car Wash Ltd., $3.00 and $5.00 for parking at Toronto airport (parking there persisted throughout), $390.72 for annual parking decals at McMaster University, $30.28 and $9.72 for groceries at the Town & Country Market and at the A & P Supersaver (I noted that several receipts in various categories over the years originated in Mississauga where he lived and appeared to be expenses ordinarily associated with life in the suburbs), $50.90 for beer at Sleeman Brewery, $8.04 on Valentine's Day for chocolates at Shoppers Drug Mart, $408.00 (the day after the Appeal judgment) for several bottles of alcohol, $91.99 at Blacks Cameras and various Bell Canada bills after the Federal Court of Appeal hearing on April 22, 1996, and after its Judgment on June 5, for which I cannot guess nexus but which I would speculate as representing his ordinary life's routine, ie. the December 16, 1996, toll log shows a call on December 4 to (514) 954-1500 in Montreal and the May 16, 1992, toll log shows a call on April 21 to the same number (they were, however on weekdays during business hours but nexus is impossible to peg in the absence of evidence) or several calls to Inch Easterbrook throughout at (905) 525-4481 (question number 1005 at page 196 of his cross-examination and Exhibit H to the Pardy affidavit confirm this number) for which relevance eludes me (the August 16, 1996, toll log discloses two on July 22 and one on July 25) and (c) $105.53 on March 20, 1996, for binders and tabs, are allowed consistent with the work approved above for Mr. Al-Mutawaly. Various receipts at Business Depot are not allowed: I did not find them suitable, in addition to amounts already approved.
[92] For 1997, there was only one receipt in Exhibit K: $799.25 to Plaintiff's solicitor of record from CoPrint to arrange by hand and photocopy the bills and receipts. Ordinarily, my view is that litigation does not unfold free of costs and results of nil dollars at taxation do not reflect that. However, given the number of receipts and invoices that were obscure or stretched credibility, I think the need for some prudent pruning should have been obvious. I allow nothing.
[93] Now, reading the Dableh cross-examination to determine if my allowances relative to the receipts should be adjusted, I concluded or noted that:
| (a) The explanation as to why he paid some costs directly, rather than through his solicitor of record, made sense (pages 17-22) ie. reasons of economy, including whether his solicitor of record was involved in making decisions but it does not account for the many examples noted above as stretching credibility relative to reasonable necessity, ie. question numbers 488-90 at pages 104-105 refer to working with Dr. El-Khoury but no dockets were kept to allow cross-reference by date. Dr. Dableh asserted in question numbers 574-75 at pages 120-22 that the Federal Court litigation was in high gear between the Federal Court of Appeal Judgment in June 1996 and the Supreme Court of Canada decision in March 1997 but, in the absence of evidence, I would guess that to be the common error of attributing Supreme Court of Canada activities to the lower Courts, ie. see question number 575 at page 122 addressing the home office issue: "... it was used ... for relating the legal costs in preparing for the Supreme Court appeal" or question numbers 2634-38 at pages 413-14 addressing his annual parking decal for 1996 at McMaster University relative to the forthcoming Supreme Court of Canada phase or question numbers 2787-89 at page 429 addressing office supplies in 1996 to prepare for the Supreme Court of Canada. Exceptions (not all are listed below) providing explanations subsequent to Exhibit K, were questions such as numbers 701-704 removing the Faculty Search Committee Charge, number 1235 at pages 228-29, and other pages, removing the Mississauga Hospital charges; numbers 1396-1415 at pages 260-63 removing McDonald's meals in Fredericton; numbers 1486-88 at page 271 removing prescription drugs, numbers 2214-16 at page 361 and numbers 2234-37 at page 363-64 removing several Canadian Tire purchases; numbers 2241-45 at pages 364-65 removing clothes at Thrifty's; numbers 2361-63 at page 379 removing the Den of Wines and Robber Bride and numbers 2621-22 at page 412 removing West End Car Wash. He insisted on keeping others for potential financing such as question numbers 1361-65 at page 256 for the expense for Dennis Marcon's stag and numbers 1632-42 at pages 288-89, for Etobicoke Musical Production. |
| (b) There were several adjustments to the bills of costs reflecting things such as double counting (pages 31-33); undertakings were given to provide more detail but it was not possible to peg every individual expense (pages 40-44); there was no reason to change the amounts for disbursements allowed above through his solicitor of record (pages 1-60); Dr. Dableh kept a working copy of all documents and materials (pages 90-91) with few exceptions; Dr. Dableh answered several times throughout, ie. at pages 95-96 and 108-9, that he did not have the time or expertise to perform certain functions such as photocopies, and instead paid people for those tasks; his place of residence has three home offices, one of which is "specifically dedicated for the lawsuit" (question numbers 564-66 at page 119); and several times throughout, ie. question numbers 623-36 at pages 135-36, Dr. Dableh could not clarify obscure items. |
| (c) Question numbers 587-95 at pages 125-29 and numbers 695-99 at pages 146-47 address the basis for 1989 expenses prior to institution in 1990. Again, the explanation makes sense, ie. it grew out of the alleged constructive dismissal and conversion of technology actions in the province, but I could not conclude that the amount presented equated, on the evidence, to reasonable necessity, in whole or in part, solely as a function of this litigation. |
| (d) Question numbers 598-99 at pages 130-31 are the first characterization, not apparent from his affidavit, of his financing efforts. Question numbers 637-40 at pages 136-37 and numbers 1995-2003 at pages 336-37 disclose that alcohol purchases relate to financing. On the evidence throughout for this or other categories, ie. toll calls, his passport renewal or Terminal 2 parking at the Toronto Airport, I can only surmise that this litigation might have been discussed but any meaningful guess at reasonable necessity would be difficult. |
| (e) Question numbers 674-75 at page 143 and number 1319 at pages 248-49 confirm that his recollection was based on the "shoebox" approach, ie. he may not specifically recall a given purchase but he would have, at the time, determined that it was relevant to this litigation and put it in a receptacle dedicated to that purpose. The amounts allowed reflect the extent to which I felt reasonable necessity could be inferred. I set out question numbers 1342-49 at pages 252-53 to illustrate my difficulty with the evidence: |
| 1342. Q. Thank you. Adjacent to it is a receipt from McMaster University Book Store--- |
| A. Yes. |
| 1343. Q. ---for "Micro Robert Poche Nouvelles" (sic), a French novel? |
| A. "Micro Robert"--- |
| 1344. Q. Would you please tell me what that is in relation to? |
| A. "Micro Robert Poche Nouvelles"? |
| 1345. Q. It's my understanding that would be a French reference work? |
| A. No. It may be a little dictionary, a pocket dictionary. |
| 1346. Q. You can't tell me--- |
| A. I cannot tell you beyond that, no. |
| 1347. Q. Is that a receipt that you would delete , sir, or not, being a pocket French novel? |
| A. I wouldn't delete it on that basis. I don't think--I don't--I--that--I never read a French novel. I don't think anybody read a French novel. My kids don't go to McMaster to buy this stuff. This is a purchase that I would have personally made and--and I see no reason to delete it because I cannot explain what it is. |
| 1348. Q. But you can't give me any assistance in terms of identifying specifically what it was you purchased and for what purpose? |
| A. It could have been--it could have been a pocket dictionary. |
| 1349. Q. The additional purchases on that page, I take it we can't be specific with respect to them? |
| A. No. |
| Similar sentiments apply to question number 1538 at page 277; numbers 1570-72 at page 281; numbers 1646-50 at page 290; number 2007 at page 338; number 2029 at pages 340-41; number 2323 at page 374; numbers 2408-9 at page 386; numbers 2455-56 at page 391; numbers 2471-77 at page 393 and number 2745 at page 424 (reaffirming the claim for $408.00 for alcohol to celebrate the appeal Judgment). Question number 904 at page 180 discloses that he did not patronize restaurants other than for meetings but also disclosed that he sometimes does not eat. Generally, he could not recall their details other than to assert that many related to financing and he refused to disclose names related to financing, ie. question numbers 2719-22 at page 422. Question numbers 952-53 at page 186, number 1600 at page 284 and numbers 2186-87 at page 358 disclose purchases of chocolates for the receptionist at Inch Easterbrook: there is nothing in the evidence to establish reasonable necessity. His cross-examination did not enhance the credibility of his shoebox decisions, ie. question numbers 967-69 at page 188-89 addressing purchase of medical coverage for Abdul and Vivian El-Khoury, after their immigration and during a three-month waiting period, for public health coverage, in terms of extrapolating reliance on his credibility for receipts for which there were no details and which he could not recollect. Question number 1001 at page 196 asserts that Montreal telephone calls addressed financing. |
| (f) Question numbers 1272-80 at pages 234-36 address a Mississauga parking fine presented as a legitimate expense associated with advancing this litigation but for which he could provide no detail. The same holds for other parking and speeding violations throughout. Some parking receipts throughout were addressed but I could not justify additional allowances. Question numbers 1753-55 at pages 304-5 explain the annual parking decal at McMaster University as his way of apportioning costs, ie. by selecting one of several years associated with the litigation. Question numbers 1787-89 at pages 310-11 explain the truck rental, for moving, as the need to use Dr. Dableh's credit card given that Dr. El-Khoury did not have one but had performed indemnifiable work for Dr. Dableh. Question numbers 1790-1823 at pages 311-15 confirm that only his airfare in 1991 was claimed but I still have difficulty with credibility given that I doubt that, with his family along, he spent two months on financing so as to warrant claiming the full amount. |
[94] The additional written submissions and the Joint Book did not alter my conclusions except as noted below. They included receipts for working lunches paid through the solicitor of record. There was nothing in the evidence, per my comments above on dietary cycles, to warrant Ontario Hydro indemnifying for meal breaks during the trial, ie. three different take-out orders for May 20, 1992, totalling $151.73, suggest several unidentified participants but there are no details of reasonable necessity. As well, the Joint Book contained additional receipts, paid through the solicitor of record, such as $301.76 on February 21, 1991, to The Printing House Ltd. for copies of the "Ford and Cenanovic transcripts". My allowances above for such items, paid through the solicitor of record, were based on my reading of the evidence relative to reasonable necessity for this litigation: I made no further adjustments there. The Joint Book included the Statement of Claim from T-1598-97, another action by Plaintiff against Ontario Hydro, presumably to buttress the contention that Plaintiff's assignment of home office expenses to the subject litigation was suspect. It contained several hundred additional receipts including Dr. Dableh's TV cable billings throughout, presumably for indemnification: the essence of reasonable necessity eluded me. I allow $150.00 for photocopy and binding in 1997, split between the two Divisions.
APPELLANT'S AND RESPONDENT'S SUBMISSIONS
[95] Appellant claimed interest on taxed costs, as part of my Certificate of Taxation, and cited Houser et al. v. Township of West Lincoln, 46 O.R. (2d) 703 at 704 as authority to calculate them from the date of the trial judgment. As well, Ontex Resources Limited v. Metalore Resources Limited et al. [1996] O.J. No. 4233 [para. 35] to [para. 42] buttresses that approach. Eastwalsh Homes Ltd. v. Anatal Development Corporation et al., 26 O.R. (3d) 528 was consistent with these cases. The trial costs should bear interest from September 17, 1993, and the appeal costs from June 5, 1996. Respondent argued that different dates for trial and appeal interest do apply. Also, the rate must be adjusted because the base year for fees is 1994 given the amendment effective September 1, 1995, ie. section B3 (per SOR/95-282, supra). Therefore, interest on a Judgment in 1993 has already been taken into account. Interest on unpaid disbursements is precluded by lack of evidence for purpose, relevance, participants and dates. In rebuttal, Plaintiff argued that the new Tariff applies regardless of when the litigation commenced: there is nothing permitting adjustment of the base fee. Interest on disbursements should run from the date of the invoice regardless of when it was paid.
Disposition
[96] Appellant's jurisprudence reinforced my view that the setting of interest remains within the discretion of the presiding judge or, in some instances, by legislative authority. Therefore, my rationale at page 39 in Byers Transport Limited, supra, still holds:
| .... Finally, Kosanovich asked for interest on taxed costs. To put that request in context, I note that, generally, these headings describe the various types of relief available in the disposition of the substantive issues of litigation: (a) liability; (b) directions; (c) damages; (d) costs and (e) interest. Taxation and Taxing Officers are a function of (d) and no other types of relief. Taxing Officers do not, despite appearances to the contrary, award costs. That authority is reserved to the Court or legislation. The Taxing Officer, via taxation, translates said award to a dollar figure. Assignment and/or calculation of interest is not part of that process. Put another way, interest is a function of the Court's decision as embodied in the Judgment. It is not a function of the Taxing Officer's Certificate. The entitlement to the interest calculation may become an issue in the enforcement stage of litigation. If a dispute arose, jurisdiction would lie with the Court and not with the Taxing Officer. In so concluding, I read the Alberta Judgment Interest Act, c. J-0.5 and, in particular, section 6 thereof. |
[97] The Appellant/Plaintiff presented $537,635.18, and several thousand dollars subsequently, for taxation. The Revised Bill of Costs of the Appellant is taxed and allowed at $22,813.96. The Revised Bill of Costs of the Plaintiff is taxed and allowed at $221,980.64.
"Charles E. Stinson"
Taxing Officer
DATED this 31st day of March, 1998.