GEORGETOWN RAIL EQUIPMENT COMPANY Plaintiff v. TETRA TECH EBA INC., 2023 FC 347

Date: 20230315 Docket: T-896-15 Citation: 2023 FC 347 BETWEEN: GEORGETOWN RAIL EQUIPMENT COMPANY Plaintiff and TETRA TECH EBA INC. Defendant REASONS FOR ASSESSMENT GARNET MORGAN, Assessment Officer I .

Introduction [ 1 ] This assessment of costs is pursuant to an Order and Reasons of the Federal Court dated December 23, 2020 ( 2020 FC 1188 ), wherein the Court stated the following at paragraphs 1 and 2 of the Reasons: [1] This order concerns the costs and disbursements payable to Tetra Tech EBA Inc [Tetra Tech] by Georgetown Rail Equipment Company [Georgetown] as a result of the Federal Court of Appeal’s judgment in Tetra Tech EBA Inc v Georgetown Rail Equipment Company , 2019 FCA 203 [ Tetra ]. [2] For the reasons that follow, Tetra Tech’s fees shall be assessed in accordance with Column V of Tariff B.

Tetra Tech shall be reimbursed for only those disbursements that are shown to be reasonable and necessary. II.

Background [ 2 ] To provide greater context and clarity, I am including some passages from various decisions contained in the related Federal Court (T- 896-15), and Federal Court of Appeal (A-69-18) court files, which will help to explain the origin of this assessment of costs and some of the terminology and procedural steps that will be referred to throughout these Reasons. [ 3 ] In the Court’s Bifurcation Order (T-896-15) dated May 30, 2016, explanations were provided for the terms “liability phase”, and “quantification issues”, which were the two determinative halves for this bifurcated action proceeding.

Although, the Bifurcation Order only refers to a liability phase, the parties’ costs documents often referred to the second determinative half of this proceeding, as being the “quantification phase”, “remedies phase”, or “remedies stage.” Below is an excerpt from the Court’s Bifurcation Order dated May 30, 2016, from paragraphs 1 to 3, with explanations for the terms “liability phase” and “quantification issues”: [1] In this Order: […] c). “Liability Phase” means discovery and all other steps up to and including a trial or other determination of all the Liability Issues, including any appeals. d). “Quantification Issues” means: (i). the quantum of the Plaintiff’s damages, if any, arising from any infringement by Tetra Tech of the Patents and the quantum of reasonable compensation, if any, to which the Plaintiff is entitled; (ii). the quantum of Tetra Tech’s profits, if any, arising from any infringement by Tetra Tech of the Patents; and (iii). the extent of infringement, if any, of the Patents. [2] The Quantification Issues in this action shall be determined separately from, and only after the Liability Phase, if necessary, depending upon the outcome of the Liability Phase.

For greater certainty, during the Liability Phase there shall be no further documentary or other discovery on matters solely relating to the Quantification Issues. [3] If it is necessary, depending upon the outcome of the Liability Phase, to proceed to a determination of the Quantification Issues, the procedure to be followed for the determination of the Quantification Issues, including whether such determination shall be by way of further trial or reference, shall be as directed by the Liability Phase trial judge, and either party may bring a motion for such directions after judgment following the trial in the Liability Phase.

Such a motion for directions may be brought regardless of whether the judgment is being appealed. [ 4 ] Concerning the origin of this assessment of costs, the Federal Court of Appeal’s Reasons for Judgment (A-69-18) dated July 9, 2019 ( 2019 FCA 203 ), provides some clarification at paragraphs 10 and 134: 3. The decision of the Federal Court [10] For reasons indexed as 2018 FC 70 , the Federal Court found that the patents were not invalid on the ground of

obviousness. The Federal Court went on to find that the essential elements of each patent were present in the 3-D TAS so that Tetra’s sale of the system to CN Rail and its support of the system infringed both patents. The Federal Court made no finding about remedy because, pursuant to a bifurcation order, only issues relating to liability were before the Federal Court. […] 7. Conclusion and costs [134] For these reasons, I would allow the appeal and set aside the judgment of the Federal Court.

Pronouncing the judgment that ought to have been pronounced, I would dismiss Georgetown’s claim for infringement and allow Tetra’s counterclaim in part. I would declare Canadian Letters Patent 2,572,082 and claims 7, 11 and 18 of Canadian Letters Patent 2,766,249 to be invalid. I would remit to the Federal Court for redetermination in accordance with these reasons the issues of the validity of the remaining claims of Canadian Letters Patent 2,766,249.

As Tetra has been substantially successful on appeal I would award it its costs in the Federal Court. [ 5 ] Prior to the issuance of the Federal Court of Appeal’s Judgment, and Reasons for Judgment dated July 9, 2019, the Federal Court had partially dealt with the issue of the Plaintiff’s costs for the liability phase trial (liability trial), wherein the Court’s Order (T-896-15) dated March 28, 2018, stated the following: [1] On January 31, 2018, this Court issued its Public Judgment and Reasons in Georgetown Rail Equipment Company v Rail Radar Inc , 2018 FC 70 [ Georgetown Rail ].

The Court held that Canadian Patents 2,572,082 and 2,766,249 owned by Georgetown Rail Equipment Company [Georgetown] are valid and have been infringed by Tetra Tech EBA Inc [Tetra]. [2] On May 30, 2016, Prothonotary Kevin Aalto ordered that the action be bifurcated. This Court’s decision in Georgetown Rail concerns only the question of liability. Subject to any settlement between the parties, the question of remedy falls to be determined at a future reference on damages or an accounting of profits. [3] Georgetown seeks costs for the liability phase of the action.

However, Georgetown says that the precise quantum of costs cannot be determined at this time. Georgetown states that it made a settlement offer to Tetra on September 29, 2017, the details of which remain confidential. Whether the amount of this offer is greater or less than the remedy ultimately obtained, and whether Georgetown is entitled to increased costs pursuant to Rule 420 of the Federal Courts Rules , SOR/98-106 , will not be known until the reference on damages or profits is completed. [4] Tetra appealed this Court’s decision in Georgetown Rail on February 22, 2018.

The appeal is pending and no hearing date has been set. [5] Tetra asks that any determination of costs in the liability phase be deferred until the appeal is decided and the reference on remedies is completed. Georgetown opposes this request, but has said little to support its position beyond noting that it will seek additional costs following the reference if the ultimate award is greater than the settlement offer. [6] A pending appeal is not sufficient grounds upon which to defer an award of costs ( Gillan v Mount St Vincent University , 2007 NSSC 249 at paras 2-4 ).

However, a Court’s inability to fully quantify costs until the proceedings have reached their conclusion may be grounds to defer. [7] In Apblouin Imports Ltd v Global Diaper Services Inc , 2013 ONSC 5170 [ Apblouin Imports ], the Ontario Superior Court deferred a determination of costs due to ongoing uncertainty regarding liability and the quantum of the plaintiff’s eventual recovery.

The Court noted that further litigation was anticipated to address a number of outstanding issues, and concluded that it was logical to defer any decision on costs until there was greater clarity “as to where and at what amount the liability for costs should fall” ( Apblouin Imports at para 6 ). [8] Similar considerations apply here. It is logical to defer any decision on costs in the liability phase until there is greater clarity regarding the apportionment of costs and their quantum.

Georgetown has not suggested that it will suffer prejudice if the determination of costs is deferred until the conclusion of the reference.

THEREFORE THIS COURT ORDERS that , subject to any settlement between the parties, the determination of costs in Georgetown Rail is deferred until the completion of the reference on damages or an accounting of profits. [ 6 ] The Court’s Order dated March 28, 2018, clarifies that the determination of the Plaintiff’s costs in relation to the liability trial was “deferred until the completion of the reference on damages or an accounting of profits” and that the action proceeding in the Federal Court continued to be litigated concurrently with the interlocutory appeal proceeding in the Federal Court of Appeal.

When the Federal Court of Appeal issued its Judgment, and Reasons for Judgment dated July 9, 2019, setting aside the Federal Court’s Public Judgment and Reasons dated January 31, 2018 ( 2018 FC 70 ), and p ronouncing a new judgment in favour of the Defendant, it now meant that costs were to be determined for the Defendant instead of the Plaintiff for the liability trial.

The Federal Court of Appeal’s judgment also meant that the remedies phase for the Federal Court proceeding that was being litigated concurrently with the interlocutory appeal proceeding ceased to continue so that the unresolved liability trial matters highlighted by the Federal Court of Appeal could be dealt with in a remanded hearing in the Federal Court, which was held on December 3, 2019.

Concerning the issue of costs for the remanded hearing, the Court’s Judgment and Reasons (T-896-15) dated January 17, 2020 ( 2020 FC 64 ), at paragraph 59, stated " “[i]n keeping with the agreement of the parties, because success is divided there is no award of costs.” " Therefore, there are no additional costs to be assessed in relation to the remanded hearing in this assessment of costs. [ 7 ] Following the conclusion of the remanded hearing, the Defendant filed a letter dated September 15, 2020, seeking the Court’s assistance with the resolution of the Defendant’s pending costs in relation to the liability trial.

The Court obliged this request, which led to the issuance of the Court’s Order and Reasons (T-896-15) dated December 23, 2020, which was the catalyst for the filing of the Defendant’s Bill of Costs on June 22, 2021, and this assessment of costs.

III. Assessment of Costs - documentation and hearing [ 8 ] The Defendant filed a Bill of Costs on June 22, 2021, which initiated the Defendant’s request for an assessment of costs. The Assessment Officer (O. Di Mavindi), who was assigned to this file, issued a direction to the parties on June 29, 2021, regarding the conduct and filing of additional documents for this assessment of costs, which was heard by videoconference on August 26, 2021. The court record (hard copy file and computerized version) shows that the following documents were filed by the parties for this assessment of costs:

a) On July 21, 2021, the Defendant filed a Book of Authorities, and a costs record (5 vol.) containing an Affidavit of Bentley Gaikis, sworn on July 21, 2021; an Affidavit of Bob Sotiriadis, sworn on July 21, 2021; and Submissions for Costs Assessment.

b) On August 11, 2021, the Plaintiff filed a Book of Authorities, and a costs record (1 vol.) containing an Affidavit of Lori-Anne DeBorba, sworn on August 11, 2021; and Responding Costs Submissions.

c) On August 18, 2021, the Defendant filed a costs record (1 vol.) containing Reply Submissions for Costs Assessment and additional authorities. IV. Preliminary Issues A. Assignment of a different Assessment Officer [ 9 ] The Assessment Officer (O. Di Mavindi) who presided over the assessment of costs hearing on August 26, 2021, vacated her position before a decision had been rendered for this assessment of costs.

On August 31, 2022, I issued a direction to the parties advising that I had assumed carriage of this file and inquired about any concerns the parties may have with the assignment of a different Assessment Officer. I noted the following in my direction regarding my ability to conduct this assessment of costs: I am prepared to assess the costs for this file based on the written material submitted by the parties, in conjunction with the Zoom audio recording and transcript of the assessment of costs hearing and the court record.

I will also note that I was an observer at the assessment of costs hearing, so I have some previous familiarity with this file. [ 10 ] In response to the direction, the Defendant filed a letter dated September 9, 2022, advising that there were " “no concerns” " ; and the Plaintiff filed a letter dated September 13, 2022, advising of their " “consent” " , with my assuming carriage of this assessment of costs. Further to the parties’ responses, I will proceed with my assessment of the Defendant’s costs. B.

Assessable Services - level of costs under Column V of Tariff B of the Federal Courts Rules [FCR] [ 11 ] At paragraphs 8 and 9 of the Defendant’s Submissions for Costs Assessment, the Defendant submitted the following regarding the Court’s award of costs contained in the Order and Reasons dated December 23, 2020 : [8] The Costs Judgment did not specify at which range of Column V should Tetra Tech’s fees be assessed. As a result, the Court armed the assessment officer with the discretion to assess costs within the full range of Column V.

Tetra Tech submits that assessment under the high end of Column V is appropriate in this case. [9] In assessing costs, an assessment officer may consider the factors referred to in Rule 400(3) to determine the appropriate amount of costs. Tetra Tech submits that the Rule 400(3) factors warrant an assessment of costs at the top of Column V. Further, an assessment of costs at the top of Column V is consistent with Georgetown’s 2018 costs submissions which claimed that their costs for the liability phase should have been assessed at an amount no less than the top of Column V.

Also, the Court has noted that the Tariff is generally inadequate in intellectual property litigation which further warrants awarding costs at the top of Column V. [ 12 ] Concerning the overall level of costs for this assessment of costs, the Court stated the following at paragraphs 27 to 29 of the Order and Reasons dated December 23, 2020: [27] In its costs submissions dated March 1, 2018, filed following this Court’s decision in Georgetown #1 , Tetra Tech took the position that a lump sum costs award was not appropriate, and “costs should be awarded based on the applicable standard set out in Rule 407; that is, the mid-point of Column III”.

Tetra Tech distinguished the present case from the circumstances in which the FCA approved a lump sum costs award in Nova : Nova was “an extremely complex patent case involving much expert testimony,” noting “22 allegations of invalidity, 33 days of discovery, 32 days of trial, written submission exceeding 700 pages, and the closing argument lasting three days.” It is based on these considerations, that the trial judge concluded that an increased award of costs was justified.

This is far from the present situation. [28] Tetra Tech has had two opportunities to provide the Court and the Plaintiff with a detailed record and sufficient information on which to base a lump sum costs award, but is either unwilling or unable to do so.

Having regard to Tetra Tech’s position following this Court’s decision in Georgetown #1 that these proceedings were significantly less complex than those at issue in Nova , and that costs should be assessed in accordance with Tariff B, I accept that this is a reasonable approach to determining costs in this case. [29] Georgetown proposes that Tetra Tech’s fees be assessed in accordance with Column V of Tariff B, and that it be reimbursed for only those disbursements that are shown to be reasonable and necessary. An Order will be issued accordingly.

[ 13 ] In the Defendant’s Bill of Costs submitted for this assessment of costs, all of the claims for assessable services have been claimed at the highest end of Column V; and the Plaintiff has responded by reducing most of the Defendant’s claims to the mid-point of Column V (Defendant’s Submissions for Costs Assessment, paras 14 to 18; Plaintiff’s Responding Costs Submissions, paras 16, 18 to 20 and DeBorba Affidavit, exhibit B; and Defendant’s Reply Submissions for Costs Assessment, paras 3 to 7 ).

Further to the parties’ current positions on costs, my review of the parties’ 2018 costs submissions, which were for the Court’s consideration, revealed that the parties have had differing positions on the level of costs that should be applied in relation to the liability trial, depending on whether costs were owed or costs were payable (Plaintiff’s costs submissions dated Feb. 15, 2018, paras 30, 31, 37, 38; and Defendant’s costs submissions dated March 1, 2018, paras 2, 3). [ 14 ] Concerning the Defendant’s 2018 costs submissions, it is noted that these submissions were filed by a different counsel of record and that the current counsel of record may have a new perspective on the level of costs to be applied in relation to the liability trial (Defendant’s Submissions for Costs Assessment, paras 4, 5).

Although this has been noted, the court record does reflect that the Defendant had once argued that “costs should be awarded based on the applicable standard set out in Rule 407; that is, the mid-point of Column III” and that this was referred to in the Court’s Order and Reasons dated December 23, 2020, at paragraph 27, just before reaching a conclusion on costs at paragraph 29. [ 15 ] In support of the Defendant’s claims for costs at the highest end of Column V, Allergan Inc v Sandoz Canada Inc , 2021 FC 186 [ Allergan ], was cited, wherein the Court stated the following at paragraphs 25 and 26, regarding the inadequacies of Tariff B to sufficiently compensate some intellectual property proceedings: [25] The "default" level of costs in this Court is the mid-point of Column III in Tariff B: Rule 407; Sanofi-Aventis Canada Inc v Novopharm Limited , 2009 FC 1139 at para 4 [ Sanofi-Novopharm FC ], aff'd 2012 FCA 265 ; Apotex v Sanofi-Aventis , 2012 FC 318 at para 5 [ Apotex v Sanofi-Aventis ]; Dennis v Canada , 2017 FC 1011 at para 8 ; Bernard v Professional Institute of the Public Service of Canada , 2020 FCA 211 at para 38 .

Column III is intended to provide partial indemnification (as opposed to substantial or full indemnification) for "cases of average or usual complexity": Thibodeau , above, at para 21; Novopharm Ltd v Eli Lilly and Co , 2010 FC 1154 at para 5 [ Novopharm v Eli Lilly ]. [26] In recognition of the particular attributes of intellectual property proceedings, it is common for increased costs to be awarded in those proceedings: see, e.g., Consorzio , above, at para 6; Lainco Inc c Commission scolaire des Bois-Francs , 2018 FC 186 at para 8 (c).

Those particular attributes include greater than average complexity, sophisticated parties, legal bills far in excess of what is contemplated by Column III of Tariff B, and "giving parties an incentive to litigate efficiently": Seedlings Life Science Ventures, LLC v Pfizer Canada ULC , 2020 FC 505 at para 4 [ Seedlings ].

For cases that involve drug patent disputes and a cost award fixed by reference to the tariff, the high end of Column IV is often considered to be reasonable and appropriate: Sanofi-Novopharm FC , above, at para 13 , aff'd 2012 FCA 265 ; Novopharm v Eli Lilly , above, at para 7; Apotex v Sanofi-Aventis , above.

See also Federal Court of Appeal and Federal Court Rules Committee, Review of the Rules on Costs: Discussion Paper , October 5, 2015, at page 8. [ 16 ] In Allergan , the Court stated that the default level of costs in the Federal Court is " “the mid-point of Column III in Tariff B” " and that increased costs for intellectual property proceedings may be justified based on particular attributes for these types of proceedings, such as " “greater than average complexity, sophisticated parties,” " and " “legal bills far in excess of what is contemplated by Column III of Tariff B” " ( Allergan , para 26 ).

My review of the Order and Reasons dated December 23, 2020, indicates that the Court considered the attributes for this file, such as complexity and the quantum of costs requested by the Defendant and ultimately awarded increased costs under Column V without any specific instructions to the Assessment Officer regarding the specific range of units to apply within Column V (Order and Reasons dated December 23, 2020, paras 10, 12, 22, 27 to 29).

The Court’s costs decision for this file can be distinguished from Eurocopter v Bell Helicopter Textron Canada Ltée , 2012 FC 842 [ Eurocopter ] , which was cited by the Defendant, wherein for that file, the Court awarded increased costs under Column IV but also stipulated that these costs " “shall be assessed only at the upper end of column IV of Tariff B” " ( Eurocopter , para 22 ). [ 17 ] Further to my consideration of the aforementioned facts, I do not find that sufficient justification has been presented by the Defendant to compel me to make a blanket allowance for all of the Defendant’s claims for assessable services at the highest end of Column V.

In Starlight v Canada , [2001] FCJ No 1376 [ Starlight ], at paragraph 7 , the Assessment Officer stated the following regarding assessing each assessable service based on its own circumstances : [7] The structure of the Tariff embodies partial indemnity by a listing of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing and synthesizing of issues leaving relatively straightforward issues for trial.

Therefore, each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation. If items are a function of a number of hours, the same unit value need not be allowed for each hour particularly if the characteristics of the hearing vary throughout its duration. In this bill of costs, the lower end of the range for item 5 and the upper end of the range for item 6 are possible results.

Some items with limited ranges, such as item 14, required general distinctions between an upper and lower assignment in the range for the service rendered. [ 18 ] Utilizing the Starlight and Eurocopter decisions as guidelines, and pursuant to Court’s Order and Reasons dated December 23, 2020, I will assess the Defendant’s claims for assessable services individually to determine the quantum of costs to allow for each claim.

For my assessment of each claim, I will consider the full range of units available under Column V, in conjunction with the factors listed under Rule 400(3) of the FCR, which I am able to consider as an Assessment Officer pursuant to Rule 409 of the FCR. My assessment of each claim will also include a review of the parties’ costs documents, the court record, and any relevant rules, statutes, and jurisprudence that may be applicable for a particular claim. C. Assessable Services - second counsel fees and travel by counsel [ 19 ] The Defendant’s Bill of Costs has claims submitted under Items 8, 9, 13(a), 13(

b) and 14(

a) for second counsel fees, and claims submitted under Item 24 for travel by counsel. At paragraph 39 of the Defendant’s Submissions for Costs Assessment the following was

submitted regarding second counsel fees: [39] The Court’s lack of direction regarding second counsel is due to Tetra Tech seeking a lump sum award in its costs submissions and not a result of the Court determining that the inclusion of fees for second counsel services is not appropriate in this proceeding. The recent trend towards awarding lump sum costs in the Court has changed the landscape from old case law where costs submissions were based on the Tariff and it appears Justice Fothergill never turned his mind to how many counsel should be awarded under the Tariff calculations.

If the Assessment Officer finds she lacks jurisdiction to award second counsel, Tetra Tech seeks leave to file a motion pursuant to Rule 397 seeking direction from Justice Fothergill with respect to second counsel.

The Defendant did not provide any initial submissions regarding the claims for travel by counsel. [ 20 ] In response, the Plaintiff submitted that the Defendant’s claims for second counsel fees and travel by counsel should be disallowed, as there are no Court directions allowing these costs, and that the time has expired for the Defendant to submit a motion for reconsideration pursuant to Rule 397 of the FCR.

The Plaintiff cited the decisions Janssen Inc v Teva Canada Ltd , 2012 FC 48 , at paragraph 40 [ Janssen ] ; Merck & Co v Canada (Minister of Health) , 2007 FC 312 , at paragraph 9 ; and Bayer AG v Novopharm Ltd , 2009 FC 1230 , at paragraph 8 ; wherein claims for second counsel fees and travel by counsel were disallowed due to an absence of a Court decision or the absence of a specific provision in Tariff B for an allowance of the claim (Plaintiff’s Responding Costs Submissions, paras 9 to 11, 50, 52). [ 21 ] In reply, at paragraph 9 of the Defendant’s Reply Submissions for Costs Assessment the following was submitted regarding second counsel fees and travel by counsel: [9] Tetra Tech did not file a motion pursuant to Rule 397 within 10 days of the Costs Judgment or a motion pursuant to Rule 403 within 30 days of the Costs Judgment, as it did not anticipate Georgetown would oppose the assessment of services that it previously argued should be assessed.

Should the Assessment Officer find she lacks jurisdiction to award amounts for second counsel and counsel travel services, Tetra Tech requests an opportunity to seek leave to file a motion pursuant to Rule 397 seeking direction from Justice Fothergill regarding second counsel and counsel travel services. [ 22 ] As a preliminary matter at the beginning of the assessment of costs hearing held on August 26, 2021, the parties’ positions regarding second counsel fees and travel by counsel were discussed, and the Assessment Officer (O.

Di Mavindi) advised the parties that she was of the opinion that she did not have the authority to assess costs for second counsel fees and travel by counsel in the absence of a Court direction or decision specifically awarding these costs. Subsequent to this discussion, the parties argued the remaining issues for the assessment of costs, and at the conclusion of the hearing the Defendant undertook to seek some instructions on the filing of a motion and endeavoured to advise the Assessment Officer and the Plaintiff forthwith.

Later that same day, the Defendant sent an e-mail to the Assessment Officer and the Plaintiff advising the following: We are writing to let you know that we will not be seeking leave to file a motion for further direction from Justice Fothergill regarding the second counsel and counsel travel services. (Defendant’s e-mail dated August 26, 2021, 5:31 p.m.) [ 23 ] Further to my review of the aforementioned facts, I am in agreement with the position that was held by the Assessment Officer (O.

Di Mavindi), that in the absence of a Court direction or decision specifically awarding second counsel fees and travel by counsel as an assessable service, I do not have the authority to assess these costs. My review of the assessable services listed in Tariff B that specifically mention second counsel fees or travel by counsel (Items 14(b), 22(

b) and 24), all indicate that costs can only be assessed with a direction from the Court, or at the Court’s discretion. In Capra v Canada (Attorney General) , 2009 FC 916 [ Capra ] , at paragraphs 8 and 9 , which was cited by the Plaintiff , the Assessment Officer stated the following regarding claims submitted under Item 14(

b) for second counsel fees: [8] In Balisky v. Canada (Minister of Natural Resources) , 2004 FCA 123 , [2004] F.C.J. No. 536, at paragraph 6 the assessment officer states: Rule 400(1), which vests full discretionary power in the Court over awards of costs, means that orders and judgments must contain visible directions that costs have been awarded. Given the Federal Courts Act , ss. 3 and 5(1) defining the Court and Rule 2 of the Federal Court Rules, 1998 defining an assessment officer, the absence of that exercise of prior discretion by the Court leaves me without jurisdiction under Rule 405 to assess costs. [9] Item 14(

b) includes the provision "where Court directs". As an assessment officer is not a member of the Court, and there being no direction or order of the Court concerning second counsel on file, I am without jurisdiction to allow the amount claimed under Item 14(b). [ 24 ] Concerning Item 22(b), in Coca-Cola Ltd v Pardhan (cob as Universal Exporters) , 2006 FC 45 [ Coca-Cola ], at paragraph 20, the Assessment Officer stated the following regarding Item 22(

b) and Court directions: [20] […] In my opinion, the key phrase in Item 22(

b) of Tariff B of the Federal Courts Rules is "...where the Court directs..." I have reviewed the material in the Court record and have determined that no such direction exist, therefore, this assessable service is disallowed for each of the appeal proceedings. [ 25 ] Concerning Item 24, in Marshall v Canada , 2006 FC 1017 [ Marshall ], at paragraph 6 , the Assessment Officer stated the following regarding claims for travel by counsel: [6] The Federal Courts Act sections 4 and 5.1(1) defining the Federal Court, and Rule 2 of the Federal Courts Rules defining an assessment officer, mean that the terms "Court" (as used in item 24 of Column III of Tariff B for the time of counsel to travel to a venue) and "assessment officer" refer to separate and distinct entities.

The Court did not exercise visible direction here for the travel fees of counsel to attend examinations for discovery and therefore I do not have the jurisdiction to allow anything for item 24. That restriction does not apply to the associated travel disbursements, for which I retain jurisdiction under

Rule 405. That is, counsel fees and disbursements are distinct and discrete items of costs addressed by different portions of the Tariff, i.e. items 1 to 28 in the TABLE in Tariff B address counsel fees and Tariff B1 addresses disbursements. Accordingly, item 24 addresses counsel fees, but not disbursements. The discretion reserved to the Court to authorize assessment officers to address item 24, or even item 14(

b) for second counsel, is exercised distinct from the discretion vested in me by Rule 405 and Tariff B1. There is no implied caveat impeding me from allowance of travel disbursements for counsel in the absence of an item 24 direction from the Court for fees for the time of counsel to travel to and from a hearing venue. […] [ 26 ] In addition, in Fournier Pharma Inc v Canada (Minister of Health) , 2013 FC 862 [ Fournier ], at paragraph 31 , which was cited by the Plaintiff, the Assessment Officer stated the following regarding claims submitted under Item 13(

b) for second counsel fees: [32] Having reviewed the Costs Order, I agree with Fournier that the Costs Order makes no provision for second counsel for preparation for hearing. Further, Item 13(

b) in the Table to Tariff B makes no provision for second counsel. Given that there is nothing granting me the jurisdiction to exercise discretion for second counsel under Item 13(b), I find that I lack the authority to allow a claim for second counsel. Therefore, Sandoz' claim for second counsel under Item 13(

b) is not allowed. [ 27 ] Concerning the duty of an Assessment Officer, the Court stated the following in Pelletier v Canada (Attorney General) , 2006 FCA 418 [ Pelletier ], at paragraph 7 : [7] […] Under

section 405, an assessment officer "assesses" costs, which assumes that costs have been awarded.

Section 406 provides that an officer does this at the request of "a party who is entitled to costs", which again presupposes that an order for costs was made in favour of that party. Under

section 407, the officer assesses the costs in accordance with column III of the table to Tariff B "unless the Court orders otherwise."

Section 409 provides that "[i]n assessing costs, an assessment officer may consider the factors referred to in subsection 400(3)." In short, the duty of an assessment officer is to assess costs, not award them.

An officer cannot go beyond, or contradict, the order that the judge has made. […] [ 28 ] Upon my review of the parties’ costs documents in conjunction with the court record and the FCR, and utilizing the Capra , Coca-Cola , Marshall , and Fournier decisions as guidelines, and also having considered the decisions cited by the Plaintiff in paragraph 21 of these Reasons; I find that I do not have the authority to assess the Defendant’s claims for second counsel fees and travel by counsel as an assessable service.

As the Court stated in the Pelletier decision, my role as an Assessment Officer is only " “to assess costs, not award them.” " In the absence of a Court direction or decision specifically awarding second counsel fees or travel by counsel as an assessable service, or alternatively any jurisprudence from the Defendant to support the allowance of these costs in the absence of a Court direction or decision, I find that I do not have the authority to assess these types of costs autonomously.

Therefore, I have determined that the Defendant’s claims for second counsel fees and travel by counsel as an assessable service must be disallowed as they pertain to the facts for this particular file. The amounts disallowed are 229 units for second counsel fees and 27 units for travel by counsel for a cumulative amount of $40,320.00, which is inclusive of GST. V. Assessable Services [ 29 ] The Defendant has claimed 1005 units for assessable services, for a total amount of $158,287.50, which is inclusive of GST.

Further to my disallowance of the Defendant’s claims for second counsel fees and travel by counsel as an assessable service, there are 749 units for assessable services remaining to be assessed. These remaining claims are for a total amount of $117,967.50, which is inclusive of GST. A. Item 2 – Preparation and filing of all defences, replies, counterclaims or respondents’ records and materials. [ 30 ] The Defendant has claimed 13 units for the preparation of a Statement of Defence filed on July 16, 2015. The Defendant did not provide any specific submissions regarding this particular claim.

The Plaintiff also did not provide any specific submissions regarding Item 2 but in the Bill of Costs provided by the Plaintiff, the suggested number of units for Item 2 was reduced to 10 units with a note stating that the Defendant’s Statement of Defence was 6 pages long (DeBorba Affidavit, exhibits B and E). My assessment of this particular claim took into consideration that the Defendant’s Statement of Defence was filed in response to the Plaintiff’s Statement of Claim filed on May 29, 2015, which was an intellectual property matter of moderate complexity.

It is noted that the Plaintiff’s Statement of Claim was 18 pages long with several issues to be reviewed and responded to by the Defendant. I have reviewed the factors in awarding costs that are listed under Rule 400(3), and having considered factors such as; " “(

a) the result of the proceeding;” " " “(

c) the importance and complexity of the issues;” " and " “(

g) the amount of work;” " the court record reflects that the Defendant was the successful party in the action proceeding; that the issues argued were of significant importance and of moderate complexity; and that a moderately high amount of work was performed by the Defendant to review and respond to the Statement of Claim. Therefore, I find it reasonable for the Defendant to be allowed costs at a level slightly higher than the mid-point of Column V, and will allow 11 units for Item 2. B.

Item 3 – Amendment of documents, where the amendment is necessitated by a new or amended originating document, pleading, notice or affidavit of another party. [ 31 ] The Defendant has claimed 8 units for the preparation and filing of the Re-Amended Statement of Defence on July 20, 2017, that was in response to the Plaintiff’s Fresh as Amended Statement of Claim filed on June 20, 2017. The Defendant did not provide any specific submissions regarding this particular claim.

The Plaintiff also did not provide any specific submissions regarding Item 3 but in the Bill of Costs provided by the Plaintiff, the suggested number of units for Item 3 was reduced to 6 units with a note stating that the Defendant’s Re- Amended Statement of Defence only had minor amendments to paragraphs 4 and 5 (DeBorba Affidavit, exhibits B and G).

Similar to Item 2, I have taken into consideration the factors listed under Rule 400(3) , and I find the factors for Item 3 to be similar to Item 2, with the exception that only a moderate amount of work was required for the preparation of the Re-Amended Statement of Defence. Therefore, I find it reasonable to allow costs at the mid-point of Column V, and will allow 6 units for Item 3.

C. Item 4 – Preparation and filing of an uncontested motion, including all materials. [32] The Defendant has claimed 6 units for the preparation and filing of documents related to the Defendant’s motion to amend theStatement of Defence, which was filed on July 16, 2015. At paragraph 25 of the Plaintiff’s Responding Costs Submissions, it is submittedthat no costs were awarded for this motion. At paragraph 10 of the Defendant’s Reply Submissions for Costs Assessment it is conceded thatthis particular motion was granted without costs and the claim for Item 4 was withdrawn.

My review of the court record found that thisparticular motion was filed on April 29, 2016, and that the related Court Order dated May 26, 2016, stated that the Defendant’s motion wasgranted, “[t]he whole without costs.” Therefore, no costs are allowed for Item 4. D. Item 5 – Preparation and filing of a contested motion, including materials andresponses thereto. [33] The Defendant has submitted multiple claims under Item 5 for documents related to the preparation and filing of costs documents, andthe preparation of charts for refusals motions.

(1) Costs documents [34] Concerning the Defendant’s claims for the preparation and filing of costs documents, 11 units are claimed for the preparation andfiling of costs submissions on March 2, 2018; and 11 units are claimed for the preparation and filing of costs submissions and affidavits onSeptember 15, 2020, and December 11, 2020.

The Defendant has submitted that these claims should have been entered under Item 15 in theBill of Costs, which is for "“written argument, where requested or permitted by the Court”" and cited Aird v Country Park VillageProperties (Mainland) Ltd., 2005 FC 1170, at paragraphs 31 to 34, to support the Defendant’s request to amend these claims (Defendant’sSubmissions for Costs Assessment, paras 32, 33). [35] In response, the Plaintiff submitted that no costs should be allowed for the Defendant’s costs documents as the Court’s Orders (datedMarch 28, 2018, and December 23, 2020) are silent with respect to costs and cited Quinn v Canada (Attorney General), 2021 FC 470[Quinn], at paragraphs 22 and 23, to support this argument.

In addition, the Plaintiff submitted that the Defendant unilaterally filed costssubmissions almost nine months after the remanded hearing decision was issued on January 17, 2020, and that these submissions should beassessed under Item 26.

If any costs are allowed for the Defendant’s 2020 costs submissions, the Plaintiff requests that no more than 5 unitsbe allowed (Plaintiff’s Responding Costs Submissions, paras 27, 28, 30, 37, 38). [36] In reply, the Defendant submitted that "“Item 15 provides recovery for the preparation and filing of written arguments, whererequested or permitted by the Court.”" The Defendant submitted that "“Item 15 does not require the written arguments to be directed orordered by the Court”" for costs to be claimed, and that an award of costs in relation to a trial or hearing "“encompasses fees related to costssubmissions,”" and cited AstraZeneca AB v Apotex Inc, 2009 FC 822 [AstraZeneca], at paragraph 40, wherein similar costs were allowedby an Assessment Officer.

It was also submitted that the Defendant’s 2020 costs submissions "“should be viewed as an extension of theliability trial”", and that Item 26 is not the appropriate Item, as this claim is pertaining to the work performed prior to an assessment of costsbeing requested (Defendant’s Reply Submissions for Costs Assessment, paras 11, 13, 15, 16). [37] First, I will consider the Defendant’s request to amend the Item number for the claims for costs documents that were entered underItem 5 instead of Item 15 in the Bill of Costs filed on June 22, 2021.

In Mitchell v Canada (Minister of National Revenue - M.N.R.), 2003FCA 386 [Mitchell], at paragraph 12, the Assessment Officer stated the following regarding the positive application of costs provisions: [12] The Appellants are correct that the wording for item 27 does not generally fetter discretion. However, that discretion, asfor other items in bills of costs, is still fettered by reasonable necessity and the limits of an award of costs. Consistent with Rule3, and with my sentiment in Feherguard Products Ltd. v. Rocky's of B.C.

Leisure Ltd., (FC), [1994] F.C.J.No. 2012 (A.O.), at para. 10 that the "best way to administer the scheme of costs in litigation is to choose positive applicationsof its provisions as opposed to narrower and negative ones", application of discretion should be part of a reasoned process toachieve a result on assessment which is equitable for both sides. […] [38] Utilizing the Mitchell decision as a guideline, I have determined that allowing the amendment of the Defendant’s claims from Item 5 toItem 15 will allow for a positive application of the costs provisions instead of a narrower one.

I find that the Defendant provided thePlaintiff with sufficient notice to respond to the Item amendment, as the change was requested in the Defendant’s initial written submissionsfiled on July 21, 2021. I also find that the Plaintiff had an opportunity to respond to these claims being assessed under Item 15 instead ofItem 5, in the Plaintiff’s responding submissions filed on August 11, 2021. Therefore, there is no prejudice to the Plaintiff by allowingDefendant’s request for the Item amendment.

I will now consider whether the Defendant is entitled to any costs for these claims under Item15. [39] The Plaintiff has correctly argued that there are no Court decisions specifically awarding costs for the Defendant’s costs documentsclaimed under Item 15. I am in agreement with the Defendant’s argument though, that a Court decision awarding costs in relation to a trialor hearing can encompass costs submissions, depending on the facts pertaining to a particular file.

For the assessment of claims under Item15, there does need to be a Court decision awarding costs, which is consistent with the Quinn decision cited by the Plaintiff, and thereshould be some substantiation on the court record to support that the Court "“requested or permitted”" the documents being claimed underItem 15. [40] For the first claim, my review of the Court’s Public Judgment and Reasons dated January 31, 2018, which was related to the Plaintiff’saward of costs for the liability trial, found that at paragraph 7 of the Judgment that the Court permitted the parties to file costs submissions,if the parties were unable to agree on the costs payable.

I therefore find that based on the aforementioned facts, the Defendant’s respondingcosts submissions filed on March 2, 2018, qualifies for assessment under Item 15. [41] For the second claim, my review of the court record shows that the Defendant’s moving party costs documents were filed in relation tothe Federal Court of Appeal’s Judgment, and Reasons for Judgment dated July 9, 2019, which set aside the Federal Court’s PublicJudgment and Reasons dated January 31, 2018, and awarded costs to the Defendant. The claims submitted by the Defendant for the

preparation and filing of costs submissions and affidavits on September 15, 2020, and December 11, 2020, were related to the Federal Court of Appeal’s judgment that awarded costs to the Defendant, and I did not find that there were any time limits restricting when or if costs submissions could be filed. The court record reflects that the Court permitted the receipt of the Defendant’s costs submissions filed on September 15, 2020, by issuing a direction to the parties on November 20, 2020, allowing for additional documents to be filed by the parties for the determination of costs.

I therefore find that based on the aforementioned facts, the Defendant’s costs documents filed on September 15, 2020, and December 11, 2020, qualify for assessment under Item 15. [ 42 ] Concerning the quantum of costs for each of the aforementioned claims, I found that the Court relied on the Defendant’s costs documents to render decisions on costs (dated March 28, 2018, and December 23, 2020), and that the services performed by the Defendant involved a moderate amount of work and complexity.

Therefore, I have determined that it is reasonable to allow 8 units for the first claim and 9 units for the second claim, for a total of 17 units, which will be allowed under Item 15, instead of Item 5.

(2) Charts [ 43 ] Concerning the Defendant’s claims for the preparation of charts, 11 units are claimed twice for moving charts in relation to the examinations of G. Grissom and D. Mesher during the remedies phase. The Defendant submitted that the parties agreed to exchange their moving and responding charts for their refusals motions before requesting that the Court

schedule them for a hearing.

The Defendant submitted that shortly after the parties requested that the motions be scheduled, the interlocutory appeal proceeding in the Federal Court of Appeal concluded and that the judgment made " “the parties’ motions to compel unnecessary and the charts for the motions to compel were never filed with the Court.” " Although no documents were filed in relation to the refusals motions (motions to compel), the Defendant has requested that costs still be allowed for the work that was performed, or alternatively if costs cannot be assessed under Item 5, that 5 units be allowed for each claim under Item 27 (Defendant’s Submissions for Costs Assessment, paras 24 to 27). [ 44 ] In response, the Plaintiff submitted that no motions were filed by either party and that " “[c]onsequently, no orders exist awarding costs relating to refusals motions and Tetra Tech is not entitled to claim costs for the moving charts” " , and cited Canada (Minister of Human Resources Development) v Uzoni, 2006 FCA 344 [ Uzoni ], at paragraph 4, in support of this argument.

The Plaintiff also submitted that costs should not be allowed under Item 27, as an Assessment Officer’s discretion is " “fettered by reasonable necessity and limits of award of costs” " , and cited Mitchell (supra) , at paragraph 12, in support of this argument (Plaintiff’s Responding Costs Submissions, paras 29 to 32). [ 45 ] In reply, the Defendant submitted that " “Item 5 does not only apply to motions that have been disposed of on their merits by an order and can be awarded whether or not the motions proceeded to determination by the Court.” " The Defendant also submitted that the Plaintiff’s positions on Items 5 and 27 are contradictory because " “[i]f item 5 only applies to motions that have been disposed of by an order, item 27 would still cover motions that were not disposed of by on [sic] order” " (Defendant’s Reply Submissions for Costs Assessment, para 19). [ 46 ] As acknowledged by the parties, my review of the court record did not reveal that costs were specifically awarded to any party in relation to the unfiled refusals motions.

In the Uzoni decision cited by the Plaintiff, the Assessment Officer stated the following regarding Court decisions that are silent with respect to costs, at paragraph 4 : [4] The Respondent has requested 4 units for its item 4 (Preparation and filing of an uncontested motion, including all materials for late filing of Notice of Appearance). I have reviewed the Order of the Federal Court of Appeal dated March 22, 2005, in which the Court granted the Respondent's motion for an extension of time to file its Notice of Appearance.

However, the same Order of the Federal Court of Appeal made no reference whatsoever to the issue of costs associated with the Respondent's motion. It is a well established principle that costs are at the respective Court's discretion and where an order is silent with respect to costs, it implies there is no visible exercise of the respective Court's discretion under Rule 400(1). Reference may also be made to a relevant passage in Mark M. Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, paragraph 105.7: ...

Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at a trial with no mention of costs, it is as though the judge had said that he "saw fit to make no order as to costs"... Similarly, I rely on Kibale v. Canada (Secretary of State) , [1991] F.C.J. No. 15 , [1991] 2 F.C. D-9 which reflects the same sentiment: If an order is silent as to costs, no costs are awarded.

With these points in mind, it is my opinion that the Respondent is not entitled to the costs associated with its extension of time motion and I disallow the 4 units requested for this assessable service. [ 47 ] The Uzoni decision illuminates that a Court decision must explicitly award costs for a motion, for costs to be assessed.

This decision is supported by a more recent decision of the Court in Tursunbayev v Canada (Minister of Public Safety and Emergency Preparedness) , 2019 FC 457 [ Tursunbayev ], at paragraph 39 , wherein the Court discusses the issue of decisions that are silent on costs, and concurred that costs cannot be allowed. Utilizing the Uzoni and Tursunbayev decisions as guidelines, I have determined that the Defendant’s claims for Item 5 must be disallowed, as there is an absence of a Court decision awarding costs in relation to the unfiled refusals motions to the Defendant.

This having been determined, I have considered the Defendant’s request for costs outside of the parameters of Item 5, in conjunction with the court record and Rules 370 , 402 and 411 of the FCR, and I find that there may be circumstances whereby a party could possibly be indemnified for the preparation of a motion that was not disposed of by the Court and that was not abandoned by the moving party, depending on the facts pertaining to a particular file. [ 48 ] For this particular file, the Federal Court of Appeal’s reversal of the Federal Court’s judgment for the liability trial meant that the remedies phase of the Federal Court proceeding that was being litigated concurrently ceased to continue.

My review of the facts for this particular file supports the allowance of some indemnification for the work performed by the Defendant in relation to the unfiled refusals motions, which became impertinent due to the Federal Court of Appeal’s Judgment, and Reasons for Judgment dated July 9, 2019. In

Carlile v Canada (Minister of National Revenue - M.N.R.) , [1997] F.C.J. No. 885 [ Carlile ], at paragraph 26 , the Assessment Officer stated the following regarding not penalizing successful litigants with a denial of costs when it is apparent that real costs were incurred: [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. […] [ 49 ] In addition, Rule 3 of the FCR, states the following: General principle Principe général 3. These Rules shall be interpreted and applied (

a) so as to secure the just, most expeditious and least expensive outcome of every proceeding; and (

b) with consideration being given to the principle of proportionality, including consideration of the proceeding’s complexity, the importance of the issues involved and the amount in dispute. 3 Les présentes règles sont interprétées et appliquées:

a) de façon à permettre d’apporter une solution au litige qui soit juste et la plus expéditive et économique possible;

b) compte tenu du principe de proportionnalité, notamment de la complexité de l’instance ainsi que de l’importance des questions et de la somme en litige. [ 50 ] Utilizing the Carlile and Mitchell (supra) decisions, and Rule 3 as guidelines, I have determined that assessing the Defendant’s claims for the work performed in relation to the unfiled refusals motions under Item 27 is an acceptable alternative to assessing the claims under Item 5 and will allow for a positive application of the costs provisions instead of a narrower one, as “a result of zero dollars at taxation would be absurd.” I have considered the factors listed under Rule 400(3), such as, (a), (g), “(

b) the amounts claimed and the amounts recovered;” and “(

o) any other matter that it considers relevant;” and I have determined that it is reasonable to allow 4 units for each claim under Item 27 for the work performed by the Defendant in relation to the unfiled refusals motions for a total of 8 units. [ 51 ] The cumulative total of units allowed for Items 15 and 27 is 25 units. E.

Item 7 – Discovery of documents, including listing, affidavit and inspection; Item 8 – Preparation for an examination, including examinations for discovery, on affidavits, and in aid of execution; and Item 9 – Attending on examinations, per hour. [ 52 ] The Defendant has submitted multiple claims under Items 7, 8 and 9 for the reviewing and preparing of affidavits of documents, and the preparation for, and attendance at examinations for discovery .

Concerning Item 7, the Plaintiff submitted that the Defendant’s claims for the amending of affidavits of documents should be disallowed as “ case law states that it is the aggregate event of discovery that should be reimbursed rather than each event in that process” ( Janssen ( supra ), para 19). The Plaintiff submitted that if any costs are allowed for the amended and supplemental affidavits of documents that no more than 10 units should be allowed in total . For the remaining claims submitted under Item 7, the Bill of Costs provided by the Plaintiff suggests 8 units for each claim.

It was also noted that there may be a duplicate claim submitted for the preparation of the Defendant’s Supplemental Affidavit of Documents (May 29, 2019), which should be disallowed (Plaintiff’s Responding Costs Submissions, paras 55 to 57, DeBorba Affidavit, exhibit B) . [ 53 ] In reply, the Defendant submitted that the Plaintiff’s position in the past was that amended and supplemental affidavits of documents " “should be included in an assessment of Tetra Tech’s costs.” " The Defendant submitted that if these claims cannot be allowed under Item 7, that 5 units per claim be allowed under Item 27, and cited Dewji & Gheciu Consultants Inc. v A&A Consultants & Felicia Bilc , [1999] FCJ No 1263 [ Dewji ], at paragraphs 3 and 4 , to support the allowance of these claims (Defendant’s Reply Submissions for Costs Assessment, paras 20, 21). [ 54 ] Concerning Items 8 and 9, the Plaintiff’s submissions focused on the ineligibility of the Defendant to claim second counsel fees but in the Bill of Costs provided by the Plaintiff, the suggested number of units for Item 8 was reduced to 9 units per claim, and for Item 9 the suggested number of units was reduced to 3 units per claim to be multiplied by the duration of each examination (DeBorba Affidavit, exhibit B).

The Defendant’s Reply Submissions for Costs Assessment also focused on the Plaintiff’s arguments regarding the ineligibility of the Defendant to claim second counsel fees for Items 8 and 9. [ 55 ] I have reviewed the Janssen decision cited by the Plaintiff, and I agree with the Assessment Officer’s position that the aggregation of services qualifying under Item 7 has been the established standard for assessing these claims.

This being noted, on occasion, there may be facts and circumstances pertaining to a particular file, that could support multiple claims being assessed under Item 7 ( Guest Tek Interactive Entertainment Ltd v Nomadix, Inc , 2021 FC 28 , at paragraphs 29 to 32 ) . For this particular file, I find that multiple claims can be submitted under Item 7 to reflect the bifurcation of this file and the amount of work performed.

I have reviewed the parties’ submissions and affidavits of documents, and I find it reasonable to allow two aggregate claims for the review of the Plaintiff’s affidavits of documents, and for the preparation of the Defendant’s affidavits of documents for the liability phase and for the remedies phase at the high end of Column V based on the amount of work required for the review, and preparation of affidavits of documents, including any amendments, supplementations,

and related services that were required. For the quantum of costs, having considered the aforementioned facts, I find it reasonable to allow 40 units (4 claims at 10 units each) for Item 7. [ 56 ] Concerning the Defendant’s request for additional costs to be assessed under Item 27, I have reviewed the Dewji decision , and I did not find that the facts for this particular file fully aligned with the Assessment Officer’s reasons in Dewji , wherein costs were allowed under Item 27 for additional work performed.

In Dewji , costs were allowed under Item 27 for the filing of a second affidavit of documents after the new counsel of record for the opposing party " “presented a second, completely new, affidavit.” " In Dewji , the opposing party changed their counsel of record, who then filed a completely new affidavit of documents, which required additional work to be performed by the party awarded costs.

For this particular file, the Defendant’s preparation of a supplemental affidavit of documents was the result of the Defendant changing its own counsel of record on March 19, 2019 (Defendant’s Reply Submissions for Costs Assessment, para 21). Having considered these differing facts, I do not find it reasonable to require the Plaintiff to indemnify the Defendant for added costs directly related to the Defendant’s unilateral decision to change its counsel of record.

I find that my allowance of two aggregate claims under each of the liability and remedies phases will reasonably compensate the Defendant for the work performed under Item 7.

Therefore, the Defendant’s request for additional costs under Item 27 is disallowed. [ 57 ] For Items 8 and 9, I have reviewed the factors in awarding costs that are listed under Rule 400(3), such as (a), (c), and (g); and the court record reflects that the issues that were reviewed and examined were of significant importance and of moderate complexity; and that the work performed in relation to examinations can be time consuming, as highlighted in Apotex Inc. v Merck & Co , 2004 FC 1133 , at paragraph 12 .

I therefore find it reasonable to allow a cumulative total of 40 units (4 claims at 10 units each) for Item 8. For Item 9, I find it reasonable to allow 4 units per claim, to be multiplied by the duration of the four examinations (3.9 hr, 6.5 hr, 8.9 hr and 8.2 hr) for a cumulative total of 110 units. [ 58 ] The cumulative total of units allowed for Items 7, 8, and 9 is 190 units. F.

Item 10 – Preparation for conference, including memorandum; Item 11 – Attendance at conference, per hour. [ 59 ] The Defendant has submitted multiple claims under Items 10 and 11 for the preparation for, and the attendance at case management [CMC], pre-trial [PTC], and trial management [TMC] conferences . In response, the Plaintiff submitted that all of the CMCs varied in duration from 9 to 30 minutes, and that the Defendant submitting all of the claims for Items 10 and 11 at the highest end of Column V is excessive.

It is suggested that the Defendant’s claims be " “allowed at the mid-low-range of Column V” " (Plaintiff’s Responding Costs Submissions, paras 58 to 60).

In reply, the Defendant submitted that the Plaintiff had argued in its 2020 Bill of Costs that the five CMCs " “should be assessed at the mid-range” " but is now stating that they should be assessed at " “the bottom of Column V.” " The Defendant requests that all of the claims " “be assessed at the top of Column V for the reasons outlined above and in its original written submissions for the costs assessment” " (Defendant’s Reply Submissions for Costs Assessment, paras 24, 25).

The parties did not provide any specific submissions regarding the PTC and TMC. [ 60 ] Further to the parties’ submissions, I do not find that the duration of a CMC, PTC and or TMC necessarily denotes the complexity or the amount of work performed in relation to it. Consequently, I will assess each CMC, PTC and TMC on its own merit below.

(1) Case management conferences (

a) CMC held on May 27, 2016 [ 61 ] For the CMC held on May 27, 2016 , the abstract of hearing, which is a computerized hearing details report created by the Court Registrar in attendance at a hearing, has this CMC documented as being 12 minutes in duration, which matches with the Defendant’s Bill of Costs. The court record shows that this CMC was regarding the proposed

schedule of procedural steps for this file, which was consented to by the parties (Plaintiff’s letter dated April 22, 2016). The negotiation of procedural steps for a file may not be complex in nature but it can involve a lot of back-and-forth communication between the parties to reach an agreement. I therefore find it reasonable to allow costs somewhere between the mid-point to high end of Column V for Item 10 and at the mid-point for Item 11, as the issues dealt with at the CMC were consented to by the parties. This being found, 10 units are allowed for Item 10 and 0.6 units (3 units multiplied by 0.2 hr) are allowed for Item 11 for the CMC held on May 27, 2016. (

b) CMC held on November 22, 2016 [ 62 ] For the CMC held on November 22, 2016, the abstract of hearing has this CMC documented as being 15 minutes in duration, which matches with the Defendant’s Bill of Costs. The court record shows that this CMC was requested by the Plaintiff to discuss the scheduling of refusals motions (Plaintiff’s letter dated September 23, 2016). The court record did not reveal that the Court requested any additional material from the parties prior to the CMC being held.

In the absence of any specific submissions from the parties, it is difficult to determine what preparation was required for this particular CMC. This being noted, I find the scheduling of hearings to be of low complexity and a minimal amount of work is involved. This being found, 7 units are allowed for Item 10 and 0.6 units (2 units multiplied by 0.3 hr) are allowed for Item 11 for the CMC held on November 22, 2016. (

c) CMC held on July 27, 2018 [ 63 ] For the CMC held on July 27, 2018, the abstract of hearing has this CMC documented as being 30 minutes in duration, which matches with the Defendant’s Bill of Costs. The court record shows that this CMC was regarding the scheduling of additional procedural steps for this file. As I noted for the CMC held on May 27, 2016, the negotiation of procedural steps for a file may not be complex in nature but it can involve a lot of back-and-forth communication between the parties to reach an agreement.

It is noted though that the parties did not reach an agreement before this particular CMC was held (Plaintiff’s letter dated July 20, 2018, with letters dated June 29 and July 5, 2018 attached). Having considered the facts in relation to this particular CMC, I find it reasonable to allow costs somewhere between the mid- point to high end of Column V for both Items 10 and 11. This being found, 10 units are allowed for Item 10 and 2 units (4 units multiplied

by 0.5 hr) are allowed for Item 11 for the CMC held on July 27, 2018. (

d) CMC held on August 24, 2018 [ 64 ] For the CMC held on August 24, 2018, the abstract of hearing has this CMC documented as being 9 minutes in duration, which matches with the Defendant’s Bill of Costs. The court record shows that this CMC was a follow-up conference to the CMC held on July 27, 2018. The court record did not reveal that the parties had to prepare anything for the Court prior to this CMC being held, and that the CMC was for the Court to provide potential dates for the scheduling of the reference for this file.

As a result, I find it reasonable to allow the costs for this CMC at the low end of Column V. This being found, 7 units are allowed for Item 10 and 0.4 units (2 units multiplied by 0.2 hr) are allowed for Item 11 for the CMC held on August 24, 2018. (

e) CMC held on December 20, 2018 [ 65 ] For the CMC held on December 20, 2018, the abstract of hearing has this CMC documented as being 20 minutes in duration, which matches with the Defendant’s Bill of Costs. The court record shows that this CMC was requested by the Plaintiff to discuss the conduct for the forthcoming reference for damages or profits (Plaintiff’s letter dated December 5, 2018). The court record did not reveal that the Court requested any additional material from the parties prior to the CMC being held.

In the absence of any specific submissions from the parties, it is difficult to determine what preparation was required for this particular CMC. This being noted, I find that the discussion regarding the conduct of the reference to be very important, as it was meant to be the determinative hearing for the remedies phase. Further to my consideration of the aforementioned facts, I find this CMC to be of moderate to high complexity for the hearing and that a moderate amount of preparation may have been required to research reference hearings.

Therefore, I find it reasonable to allow 9 units for Item 10 and 1.6 units (4 units multiplied by 0.4 hr) for Item 11 for the CMC held on December 20, 2018.

(2) Pre-trial conference [ 66 ] Concerning the PTC held on August 1, 2017, the abstract of hearing has the PTC documented as being 50 minutes in duration, which matches with the Defendant’s Bill of Costs. It is noted that the assigned Court Registrar’s computer entry has a clerical oversight, wherein the PTC was entered as a CMC. My review of the court record has confirmed that the hearing on August 1, 2017, was a PTC, and that it was originally scheduled for 3 hours.

This hearing was scheduled by a direction of the Court dated July 17, 2017, which was further to a joint request of the parties for the PTC (Defendant’s letter dated July 5, 2017). The parties were required to serve and file their materials by July 27, 2017, with the Defendant filing a Pre-Trial Conference Memorandum on July 27, 2017. Rules 257 to 268 of the FCR set out the scope and requirements for PTCs, with the possibility of a settlement or a trial date being fixed as possible outcomes.

Having reviewed the rules governing PTCs, it is apparent that a substantial amount of work is performed prior to a PTC being held, and that the PTC itself can be quite layered with the variety of issues that could be discussed. Although, PTCs may not necessarily be complex in nature, I find that the amount of work involved can substantiate costs being allowed at the higher end of a column in Tariff B. Therefore, further to my consideration of the aforementioned facts, I find it reasonable to allow 11 units for Item 10 and 4.5 units (5 units multiplied by 0.9 hr) for Item 11 for the PTC held on August 1, 2017.

(3) Trial management conference [ 67 ] Concerning the TMC held on October 23, 2017, the abstract of hearing has the TMC documented as being 39 minutes in duration, which matches with the Defendant’s Bill of Costs. This hearing was scheduled by a direction of the Court dated September 13, 2017, which was further to the PTC held on August 1, 2017. The TMC was scheduled for 1 hour and my review of the court record did not reveal that the parties had to prepare any material for the Court prior to the TMC being held.

This being noted, the Plaintiff filed a letter dated October 16, 2017, with agenda items for the TMC pursuant to Rule 270 of the FCR, with items such as the requirements for audio-visual equipment and the scheduling of witnesses on the agenda. The court record did not reveal that the Defendant filed a response to this letter. Although the Plaintiff’s letter had several agenda items to discuss, I did not find the items to be complex in nature, and that the items listed would require a moderate amount of work from the Defendant to provide responses at the TMC.

Therefore, I find it reasonable to allow 9 units for Item 10 and 2.1 units (3 units multiplied by 0.7 hr) for Item 11 for the TMC held on October 23, 2017 . [ 68 ] The cumulative total of units allowed for Items 10 and 11 is 74.8 units. G. Item 12 – Notice to admit facts or admission of facts; notice for production at hearing or trial or reply thereto. [ 69 ] The Defendant has submitted two claims under Item 12 for 5 units each, for the review and response to a Request to Admit, and also for the preparation of an Agreed Statement of Facts .

The Defendant did not provide any specific submissions regarding these particular claims. The Plaintiff also did not provide any specific submissions regarding Item 12 but in the Bill of Costs provided by the Plaintiff, the suggested number of units for both claims was reduced to 3 units each (DeBorba Affidavit, exhibit B).

In Merck & Co v Apotex Inc , 2008 FC 371 [ Merck #2 ], at paragraph 14 , the Court stated the following regarding the issue of an Assessment Officer having limited material available for assessing costs: [14] In view of the limited material available to assessment officers, determining what expenses are "reasonable" is often likely to do no more than rough justice between the parties and inevitably involves the exercise of a substantial degree of discretion on the part of assessment officers.

Like officers in other recent cases, the Assessment Officer in this complex case, involving very large sums of money, gave full reasons on the basis of a careful consideration of the evidence before him and the general principles of the applicable law. [ 70 ] In the absence of any specific submissions from the Defendant to justify the claims for Item 12 being submitted at the highest end of Column V, and utilizing the Merck #2 and Carlile (supra) decisions as guidelines, I find it reasonable to allow 3 units for each claim, for a cumulative total of 6 units.

H. Item 13 – Counsel fee: (

a) preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff; and (

b) preparation for trial or hearing, per day in Court after the first day. [ 71 ] The Defendant has submitted two claims under Item 13(

a) for 11 units each, for the initial preparation by first counsel for the bifurcated trial hearings, for the liability and remedies phases. One claim was also submitted under Item 13(

b) for the daily preparation for the liability trial, after the first day of the trial had commenced. The parties’ submissions focused on the trial for the remedies phase. Concerning the remedies trial (or reference), the Defendant submitted that although a hearing date was not scheduled during remedies phase, the wording for Item 13(

a) still permits for costs to be claimed whether or not the hearing proceeds. The Defendant submitted that there was correspondence with the Court and the Plaintiff regarding the scheduling of the remedies trial and that the amount of work performed by the Defendant " “is not reflected by the Tariff item lines.” " The Defendant also requested that if costs cannot be assessed under Item 13(

a) for the remedies trial that costs be assessed under Item 27 instead (Defendant’s Submissions for Costs Assessment, paras 28 to 31). [ 72 ] In response, the Plaintiff submitted that the remedies trial " “was set to take place many months after the Federal Court of Appeal released its Judgment reversing the trial decision with respect to the liability phase.” " The Plaintiff requested that costs not be assessed for this claim because the " “remedies phase never went beyond the first round of discoveries” " and that the Defendant has not submitted any evidence regarding " “what preparation work was done for the remedies trial” " (Plaintiff’s Responding Costs Submissions paras 40 to 43).

In addition, the Plaintiff stated the following at paragraph 42 of the Plaintiff’s Responding Costs Submissions, regarding a stay not being requested by the Defendant: [42] An appeal from an order does not result in an automatic stay of a proceeding. Tetra Tech had to bring a motion before the court if it wanted the quantification phase stayed pursuant to

Section 50 of the Federal Courts Act . Georgetown was fully entitled to proceed with the remedies stage. Tetra Tech has made claims under various Items of Tariff B regarding the remedies phase and should not be entitled to overclaim for Items that are not applicable. […] [ 73 ] In reply, the Defendant reiterated that there was communication with the Court and the Plaintiff regarding dates for the remedies trial, and that the Defendant also corresponded with accounting experts for the trial (Defendant’s Reply Submissions for Costs Assessment, para 23).

(1) Remedies trial (

a) Item 13(a) [ 74 ] I have reviewed the parties’ submissions regarding the trial for the remedies phase in conjunction with the court record and I find that there are sufficient grounds for the allowance of some costs for this particular claim. I do agree with the Plaintiff that the Defendant could have filed a motion pursuant to subsection 50(1) of the Federal Courts Act , R.S.C., 1985, c. F-7 , for the Federal Court proceeding to be stayed until the interlocutory appeal proceeding in the Federal Court of Appeal had been dealt with.

This being noted, my review of subsection 50(1) , did not indicate that the Plaintiff was precluded from making a similar request for a stay of proceeding. This option was available to both parties. The Plaintiff " “was fully entitled to proceed with the remedies stage” " but I also find that both parties had the potential risk of additional costs because the Federal Court proceeding continued to be litigated concurrently with the Federal Court of Appeal proceeding.

I have reviewed the court records in the Federal Court (T-896-15) and the Federal Court of Appeal (A-69-18) and they did not reveal any Court decisions that restricted the Defendant from claiming costs related to the unscheduled remedies trial.

In Bernard v Professional Institute of the Public Service of Canada , 2020 FCA 152 [ Bernard ], at paragraph 24 , I stated the following regarding a similar situation with an unscheduled judicial review hearing: [24] Further to the concerns raised in the Applicant’s submissions though, there should be some parameters associated with assessing Item 13(a), especially in a situation where no hearing was actually scheduled and a party submits a claim under Item 13(

a) for pre-hearing work. After a Requisition for Hearing has been filed and based on a party’s submissions and evidence of the pre-hearing work performed on a particular file, it may support an allowance of costs by an Assessment Officer. This being said, my review of the Respondent’s costs material did not fully illuminate the pre-hearing work that was done by the Respondent, which was not already claimed under Item 2 and Item 5 (assessed under Item 27).

More detailed submissions and evidence, such as an itemized listing of counsel’s billable hours with the specific tasks performed would have been helpful in assessing Item 13(a). [ 75 ] Having considered the aforementioned facts for this particular file, and also having considered my position in Bernard , I have determined that the Defendant is entitled to some indemnification for the work performed in relation to the unscheduled remedies trial.

I have reviewed the Defendant’s counsels’ work logs for professional services rendered and they reflect that some services were performed in relation to the remedies trial (Gaikis Affidavit, exhibit A, and Sotiriadis Affidavit, exhibit L). As the remedies trial had not been scheduled yet and the hearing date may have been several months away, and the parties were still performing the full breadth of pre-hearing services required for the remedies trial to proceed, I do not find it reasonable to allow costs at the highest end (11 units) of Column V for this particular claim.

Therefore, further to my consideration of the aforementioned facts, I have determined that it is reasonable to allow 5 units for the Defendant’s claim for Item 13(

a) in relation to the remedies trial.

(2) Liability trial (

a) Item 13(a) [ 76 ] Further to my review of the parties’ costs documents in conjunction with the court record, and considering my previous assessment for Item 13(

a) for the remedies trial, I find it reasonable to allow the Defendant’s claim for the liability trial as requested at 11 units. When I

considered the factors listed under Rule 400(3) , suc

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