BETWEEN:
Applicant
and
CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION,
ROGERS BROADCASTING LIMITED AND RADIO 1540 LIMITED, SOUTH ASIAN
BROADCASTING CORPORATION INC., SUKHVINDER SINGH BADH and CHUM
LIMITED
PAUL G.C.ROBINSON
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to the Order of the Court of Appeal dated October 5, 2005 dismissing the Application for Leave to Appeal with costs. The Application for Leave to Appeal arose from the Canadian Radio-Television and Telecommunications Commission's Broadcasting Decisions CRTC 2005-339 and CRTC 2005-340 which were both dated July 21, 2005. In these decisions, the Canadian Radio-Television and Telecommunications Commission (hereafter the "Commission") approved the application of South Asian Broadcasting Corporation Inc. for a broadcasting license to operate an ethnic FM radio station in Vancouver but denied six other applications proposing new Vancouver radio services, including that of Radio India. The Court of Appeal reviewed the material filed by the Applicant and Respondents and dismissed the proceeding when it determined that no arguable case had been established by the Applicant.
[2] On November 9, 2005, the Respondent, South Asian Broadcasting Corporation Inc. (hereafter the "Respondent"), requested an appointment to have its Bill of Costs assessed.
[3] On November 23, 2005, I forwarded correspondence to the parties informing them that this matter was appropriate for disposition by way of written submissions and set a timetable for the filing of all materials. The timetable that was issued accounted for the Christmas Recess under the Federal Courts Rules.
[4] It should be noted that the Applicant's solicitor forwarded correspondence to the Ottawa Registry on November 22, 2005 which opposed specific disbursements outlined in the Respondent's Bill of Costs. The Applicant basically submitted that $0.25 per page was an excessive claim for photocopying charges and requested that only $0.15 per page be allowed as evidenced by the attached Affidavit of Kizzy Barrett sworn November 22, 2005. The Applicant's correspondence with the attached affidavit is the only submission in opposition to the Respondent's Bill of Costs that I am aware of that was received by any of the Registries of the Courts Administration Service. Although my directions outlining a timetable for the filing of further materials was sent by facsimile and regular mail to the parties on November 23, 2005, only the Respondent chose to file rebuttal materials.
[5] In this, as in all assessments of costs proceedings, I must take a position of neutrality. An Assessment Officer may neither advocate for any one party, nor allow assessable services and disbursements which fall outside of the Federal Courts Rules and the associated tariffs. In addition, I must adhere to the intent of any decision of the Federal Court of Appeal or Federal Court of Canada which awards costs or gives directions to an assessment officer regarding specific issues which may be considered.
[6] The Respondent has requested 7 units and 3 units respectively for the item 16(a) (counsel fee for motion for leave to appeal and all services prior to the hearing thereof) and for the item 27 (research). I disallow the 3 units claimed for the research under item 27. In my opinion, the 7 units claimed for the item 16(a) captures the preparation and filing of the Respondent's materials in opposition to the Application for Leave to Appeal which includes any research required for the filing of these opposition documents. In addition, I note the wording for this item includes the phrase "...and all services prior to the hearing thereof" which, in my opinion, encompasses the research required for this assessable service. For these reasons, I allow only the 7 units ($840.00) claimed for item 16(a).
[7] This assessment of the Bill of Costs has proceeded by way of written submissions. It is my opinion that they were simple in nature and, although some of the materials were sparse in substance, the parties did participate in the filing of materials which did assist me in the assessment of the Bill of Costs. For these reasons, I reduce Item 26 (Assessment of costs) to 2 units ($240.00).
[8] For the reasons I have outlined in paragraphs [6] and [8] above, the Respondent's assessable services are assessed at 9 units ($1,080.00) plus GST ($75.60) for a total of $1,155.60.
[9] The Applicant's submissions regarding the Respondent's photocopy disbursements of $940.50 and associated binding of $71.57 respectively are outlined above in paragraph [4]. Regarding these two disbursements, I am of the opinion that it is appropriate that I refer to Diversified Products Corp.v. Tye-Sil Corp., [1990] F.C.J. No.1056 (F.C.T.D.) wherein the Federal Court states:
With respect, I cannot agree with the reasoning of the Taxing Officer. The item of photocopies is an allowable disbursement only if it is essential to the conduct of the action. Therefore, this is intended to reimburse a party for the actual out-of-pocket cost of the photocopy. The $.25 charge by the office of Plaintiffs' counsel is an arbitrary charge and does not reflect the actual cost of the photocopy. A law office is not in the business of making a profit on its photocopy equipment. It must charge the actual cost and the party claiming such disbursements has the burden to satisfy the Taxing Officer as to the actual cost of the essential photocopies.
[Emphasis is added]
In addition, I must turn to the decision in Grace M. Carlile v. Her Majesty the Queen, [1997] F.C.J. No. 885 (TO) at paragraph 26:
... Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. This presumes a subjective role for the Taxing Officer in the process of taxation. My Reasons dated November 2, 1994, in T-1422-90: Youssef Hanna Dableh v. Ontario Hydro cite, [1994] F.C.J. No. 1810, at page 4, a series of Reasons for Taxation shaping the approach to taxation of costs. Dableh was appealed but the appeal was dismissed with Reasons by the Associate Chief Justice dated April 7, 1995, [1995] F.C.J. No. 551. I have considered disbursements in these Bills of Costs in a manner consistent with these various decisions. Further, Phipson on Evidence, Fourteenth Edition (London: Sweet & Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars as the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donations of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd. ...
[Emphasis is added]
[10] In my opinion, the photocopying and binding work done in-house by the Applicant's law firm was necessary for the conduct of these proceedings. However, I must consider Diversified Products, above and Carlile, above and allow a reasonable amount for all of the photocopies as well as the binding. For these reasons, I reduce and allow the in-house photocopies and binding by thirty percent to $658.35 and $50.10 respectively for these two disbursements.
[11] The remaining disbursements for fees associated with couriers ($78.11), fax pages ($1.50), long distance - fax ($0.43), long distance telephone ($63.50) and Quicklaw searches ($78.83) are allowed in their entirety since they appear reasonable and in my opinion were necessary for the conduct of this proceeding. Therefore for the reasons I have outlined in this paragraph and paragraphs [8] and [9] above, the Respondent's disbursements are reduced and allowed for a total of $930.82 which includes GST.
[12] The Respondent's Bill of Costs in 05-A-28 is assessed and allowed in the amount of $1,155.60 for assessable services and $930.32 for disbursements for a total of $2,085.92 which includes GST. A certificate is issued in this Court of Appeal proceeding for $2,085.92 payable by the Applicant to the Respondent, South Asian Broadcasting Corporation Inc.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
July 6, 2006
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 05-A-28
STYLE OF CAUSE: RADIO INDIA(2004) LTD. v. CANADIAN
RADIO-TELEVISION AND TELECOMMUNICATIONS
COMMISSION, ROGERS BROADCASTING LIMITED
AND RADIO 1540 LIMITED, SOUTH ASIAN BROADCASTING CORPORATION INC., SUKHVINDER SINGH BADH and CHUM LIMITED
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON, Assessment Officer
DATED: July 6, 2006
SOLICITORS OF RECORD:
BLAKE, CASSELS & GRAYDON LLP FOR THE APPLICANT
Barristers and Solicitors
Ottawa, Ontario
BORDEN LADNER GERVAIS LLP FOR THE RESPONDENT (South Asian Barristers and Solicitors Broadcasting Corporation Inc.)
Toronto, Ontario