JASON HALME v. HEATHER FEX, 2011 FC 916
Opinion
Federal Court Cour fédérale Date: 20110721 Docket: T-401-10 Citation: 2011 FC 916 BETWEEN: JASON HALME AND HEATHER FEX Applicants and CAISSE POPULAIRE DE HEARST LIMITEE Respondent ASSESSMENT OF COSTS - REASONS Bruce Preston Assessment Officer [ 1 ] On April 29, 2011 the Applicants filed a Notice of Discontinuance wholly discontinuing their Application for Judicial Review. [ 2 ] On May 26, 2011 the Respondent filed its Bill of Costs together with an Affidavit of Mayra Perez Rodriguez and a letter requesting an assessment of the Bill of Costs. [ 3 ] The assessment of costs proceeded by way of teleconference on June 30, 2011.
At the hearing counsel for the Respondent withdrew the claim under Item 3 as there had been no amendment to any of the documents filed. [ 4 ] At the hearing Respondent’s counsel presented extensive submissions concerning the background to the proceeding. Although I do not intend to repeat counsel’s submissions in total, they will be referred to, as required, throughout the decision. [ 5 ] The Respondent has claimed 7 units under Item 2, preparation and filing of all defences, replies, counterclaims or respondents’ records and materials.
Counsel submitted that the Applicants filed two voluminous affidavits of Heather Fex and Jason Halme. It was further submitted that the majority of these affidavits were irrelevant to the issues before the Court. The Respondent contended that it was necessary to file the affidavits of Robert Verreault and Diane Blier in response to these affidavits. In response counsel for the Applicants submitted that the matter before the Court was not overly complicated and that Item 2 should be allowed at the low end of Column III.
The Respondent made no submissions in rebuttal. [ 6 ] Having reviewed all of the affidavits filed it is clear that the Respondent had to address the various issues raised by the Applicants. Having found this, it is clear that the issues before the Court were not complicated in a technical or factual way. Further, this matter was discontinued prior to the parties filing their Application Records, which would have factored into the claim under Item 2.
Taking these factors into account I find that the Respondent’s claim is not reasonable and allow Item 2 at 4 units. [ 7 ] The Respondent has claimed 7 units under Item 5 for the preparation and filing of a contested motion, including materials in response thereto. Counsel submitted that the motion filed January 25, 2011 was for an order dismissing the application on the grounds that the Applicants failed to provide undertakings, failed to file their record and failed to provide the transcript of the cross examination of the Respondents’ affiants.
Counsel submitted that the motion was adjourned until after the case management conference on February 25, 2011 and was not heard prior to the discontinuance of the Notice of Application. In response, counsel for the Applicants argued that there was no need for the motion as the Applicants had informed the Respondent that a sincere apology that was true and worthy would be sufficient to resolve the matter. In support of this counsel referred to Tab Q of the Respondent’s Motion Record filed January 25, 2011. Counsel further contended that if Item 5 is allowed, it should be allowed at the low end of column III.
By way of rebuttal, counsel for the Respondent argued that the discontinuance entitled the Respondent to costs, including costs of the motion. [ 8 ] Although I find the Applicants’ submissions interesting, in the
summary of the proceeding provided by the Respondent it was submitted that there was very little communication from the Applicants to Respondent’s counsel prior to the motion. Respondent’s counsel further submitted that the apology requested was difficult as the Applicants would have the discretion to decide if any apology was true and worthy. Moreover, I am of the opinion that it is not appropriate to second guess counsel concerning the appropriateness of filing a motion unless the Court has clearly indicated that the motion was vexatious or intentionally caused a delay in the proceeding.
On the other hand, it has been held that absent an exercise of discretion by the Court, an Assessment Officer, who is not a member of the Court, has no jurisdiction to allow costs of a motion ( see: Canada v. Uzoni 2006 FCA 344 ). Therefore, as the Respondent’s motion was not heard prior to the discontinuance of the Notice of Application, and consequently the Court made no award of costs for the motion, the Respondent’s claims under Item 5 is not allowed. [ 9 ] The Respondent has claimed 5 units under Item 7 for the discovery of documents, including listing, affidavit and inspection.
Counsel made brief submissions indicating that this amount was reasonable. In reply counsel for the Applicants contended that there was no discovery of documents and therefore the amount claimed under Item 7 should not be allowed. [ 10 ] The Respondent made no submission in rebuttal and has presented no evidence that there was a discovery of documents. It is clear and undisputed that there were cross examinations of the various affiants and that there were undertakings to produce documents, however; having reviewed the Court record there is no indication that an examination of documents was ever contemplated.
If the claim for discovery of documents was presented as a result of the undertakings to produce documents, I find that this is a misinterpretation of Item 7 which relates to the discovery of documents in an action pursuant to Rule 222 and following. For the above reasons Item 7 is not allowed. [ 11 ] Concerning the claims under Items 8 and 9, there does not appear to be any dispute concerning the duration for the cross examination of affiants as claimed by the Respondent.
What is in dispute is that the Respondent has claimed these Items at the high end of column III and counsel for the Applicant has submitted they should be allowed at the low end of column III. [ 12 ] Having reviewed the Affidavits of the affiants being cross examined, and as mentioned previously, the issues were not complicated in a technical or factual way. Having said this, there is a realization that cross examining an opposing party required effort and concentration regardless of complexity.
For the above reasons Item 8 is allowed at 3 units for preparation for the cross examination of all affiants and Item 9 is allowed at 2 units per hour for the cross examination of the Applicants on June 2 and 3, 2010 and 1 unit per hour for the cross examination of the Respondent’s affiants on June 4, 2010. [ 13 ] The Respondent has claimed 5 units under Item 24 for travel by counsel to attend a trial, hearing, motion, examination or analogous procedure, at the discretion of the Court. Counsel for the Respondent submitted that there was a requirement to travel to Hearst for the cross examinations of the affiants.
In response, counsel for the Applicants argued that the Applicants should not be responsible for travel by counsel as it was open to the Respondent to engage counsel from Hearst. Counsel further submitted that only the Court has discretion to award costs for travel by counsel. [ 14 ] I am in agreement with counsel for the Applicants. Item 24 of Tariff B reads: Travel by counsel to attend a trial, hearing, motion, examination or analogous procedure, at the discretion of the Court.
It has been decided on many occasions that there must be an exercise of discretion by the Court before an Assessment Officer may allow costs under Item 24 (see: Aird v Country Park Village , 2005 FC 1170 , Merck v Apotex , 2007 FC 312 , Beauliea v. Canada , [2000] F.C.J. No. 2127 , Canada (Canadian Food Inspection Agency) v. Walker , [2005] F.C.J. No. 510 , Sarasin Consultadoria e Servocos Lda v. Roox’s Inc. , [2005] F.C.J. No. 907 , and Canadian Copyright Licensing Agency v. Apex Copy Centre, [2006] F.C.J. No. 133 ) .
Further Counsel for the Respondent confirmed that there is not an order containing an exercise of discretion by the Court. Therefore, following the above decisions, Item 24 is not allowed as the Court has not exercised its discretion to award costs under Item 24.
[ 15 ] The Respondent has claimed 6 units under Item 26 for the assessment of costs. In support of this counsel referred to the Affidavit of Mayra Perez Rodriguez filed in support of the Bill of Costs. In reply, counsel for the Applicants submitted that this was not a complicated assessment and that, particularly if the costs are not allowed, Item 26 should be allowed at 0 units. [ 16 ] Although I am of the opinion that the Respondent’s claim is excessive, to completely disallow the Respondent’s claim in its entirety does not acknowledge the work required to present the assessment.
Therefore, having reviewed the Bill of Costs and the affidavit filed in support and considering the argument presented at the assessment of costs, I allow Item 26 at 4 units. [ 17 ] The Respondent has claimed 1 unit under Item 27 for conference calls regarding the motion. At the assessment counsel for the Applicants did not take issue with this claim. [ 18 ] Having reviewed the Court Record it is clear that this claim relates to a Case Management Conference held February 25, 2011. In the normal course this assessable service would have been claimed under Item 10 (Column III – 3 to 6 units).
The fact that it is claimed under Item 27 limits the number of units I may allow to those claimed. Therefore, as this Item was not contested and as the Case Management Conference addressed issues other than the Respondent’s motion, I will allow this claim under Item 27 as claimed. Disbursements [ 19 ] Counsel for the Applicants did not oppose the claims for Court Reporter fees and transcript fees. Having reviewed the invoices attached to the Affidavit of Mayra Rodriguez I find these disbursements to be reasonable and necessary.
Consequently, these disbursements are allowed as claimed at $1,129.47 and $1,756.90 respectively. [ 20 ] Having regard to facsimile and long distance, process service and courier charges, counsel for the Applicants only submission was that the amounts appeared to be somewhat excessive. Having reviewed the file and the Affidavit of Mayra Rodriguez filed in support of the Bill of Costs, I find that the amounts claimed relate to this proceeding and are reasonable.
For this reason I allow the claims for facsimile and long distance, process service and courier as claimed in the amounts of $83.56, $127.50 and $43.44 respectively. [ 21 ] The Respondent has claimed $615.31 for payment of an agency account for the services of Louis Filion. At paragraph 6 in the Affidavit of Mayra Rodriguez it is submitted that payment of the agency account to Louis Filion was made for the swearing of affidavits and telephone contacts. [ 22 ] Counsel for the Applicants submitted that Mr. Filion is a lawyer and that the agency work amounted to the payment of legal fees.
Applicants’ counsel contended that legal fees cannot be claimed as a disbursement. [ 23 ] I am in agreement with counsel for the Applicants. I find that the agency work performed was work which could have been completed by counsel. Although agency work of this type may be prudent and warranted as between solicitor and own client, it is not allowable in party-and-party costs which are limited by partial indemnity (see: Bayer AG v. Apotex Inc ., [2002] F.C.J. No. 1693 ).
For these reasons, I find that, for the purposes of this assessment, the payment for agency work is to be considered as a counsel fee which is included in the claim under Item 2 for which 4 units have been previously allowed. [ 24 ] The Respondent has claimed for accommodation, meals, gas and car rental. In the Affidavit of Mayra Rodriguez it is submitted that these expenses related to the cross examinations of the Applicants and Respondent’s affiant which occurred from June 1 to 4, 2010.
At the assessment, counsel for the Applicants contended that these expenses were greater than necessary due to then fact that Respondent’s counsel did not practice in Hearst. Counsel submitted that if the lawyer retained was closer they would not have to pay travel expenses and that these disbursements should not be allowed or allowed at a lesser amount.
By way of rebuttal, Respondent’s counsel argued that there are only three lawyers in Hearst and that the lawyers who practiced in closer proximity to Hearst did not have experience with the Personal Information Protection and Electronic Documents Act (PIPEDA) issues brought forward by the Applicants. [ 25 ] Costs cannot be assessed based on the benefit of hindsight (see: McLaughlin v. Canada (Attorney General) , 2010 FCA 114 ). The Respondent retained counsel from Sudbury to respond to the application for judicial review. Counsel for the Respondent has indicated that there are only three lawyers in Hearst.
Although there is no evidence that these lawyers were approached by Caisse Populaire De Hearst Limitee concerning this application, there is no evidence that there was no attempt to retain them. Given these circumstances, an assessment officer cannot second guess actions taken in a proceeding. As it is not disputed that the cross examinations occurred or that the expenses were incurred, for the above reasons the disbursements for accommodations, meals, gas and car rental are
allowed as claimed at $290.10, $102.59, $128.68 and $274.36 respectively. [ 26 ] The final disbursement claimed is for travel in the amount of $1,270.54. At paragraph 14 of the Affidavit of Mayra Rodriguez the Respondent submits that the disbursement was for a non-refundable ticket for a flight to Ottawa for the motion to dismiss the application. It was further submitted that the motion did not proceed.
At the assessment, counsel for the Applicants contended that the non-refundable ticket caused an excessive expenditure and that the flight should be allowed for no more than $400.00. [ 27 ] Further to my finding in paragraph 12 above, as costs were not awarded for the motion, any disbursements relating to the motion may not be allowed. Therefore, the disbursement of $1,270.54 for the flight to Ottawa to attend the motion to dismiss is not allowed. [ 28 ] For the above reasons, the Bill of Costs presented at $18,312.29 is allowed for a total amount of $8,987.90.
A certificate of assessment will be issued. “Bruce Preston” Assessment Officer Toronto, Ontario July 21, 2011 FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-401-10 STYLE OF CAUSE: JASON HALME AND HEATHER FEX v. CAISSE POPULAIRE DE HEARST LIMITEE ASSESSMENT OF COSTS WITH PERSONAL APPEARANCE OF THE PARTIES PLACE OF ASSESSMENT: TORONTO, ONTARIO
REASONS FOR ASSESSMENT OF COSTS: BRUCE PRESTON DATED: JULY 21, 2011 APPEARANCES : Shaun Brown FOR THE APPLICANTS Daniel C. Sirois FOR THE RESPONDENT SOLICITORS OF RECORD : n N ovation LLP Ottawa , ON FOR THE APPLICANTS Weaver, Simmons LLP Sudbury , ON FOR THE RESPONDENT
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