Date: 20000706
Docket: A-45-97
In the matter of the Special Import Measures Act
R.S.C. 1985, c. S-15 as amended
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
- and -
SPECIALIZED BICYCLE COMPONENTS CANADA, INC.
Respondent
ASSESSMENT OF COSTS - REASONS
P. PACE
Assessment Officer
[1] This is an assessment of the Respondent"s Bill of Costs pursuant to the Judgment of the Court dated the 17thday of January, 2000.
[2] By agreement of the parties, the assessment proceeded on the 8thday of June, 2000 by way of a teleconference. Mr. Paul K. Lepsoe spoke on behalf of the Respondent and Mr. Adrian Joseph spoke on behalf of the Appellant.
[3] This proceeding is an appeal pursuant to section 62 of the Special Import Measures Act ("the Act"), R.S.C. 1985, c. S-15 as amended, from a finding of the Canadian International Trade Tribunal, rendered on the 22ndof October, 1996.
[4] At the outset of the assessment, counsel advised that an agreement had been reached on several of the items claimed in the Bill of Costs. Namely, items 19, 20, 22 (in part), 25 and 27. The disbursements were also agreed to with the exception of $350.00 claimed for clerk fees for attendance at the Federal Court. Consequently, the only items remaining in dispute are 0.3 hours in item 22, items 23, 24 and 26 and the disbursement regarding the clerk fees.
| Item 22: Counsel fee for hearing of appeal under this item |
[5] The Respondent claims 2.5 hours X 3 units for attendance by first counsel at the Federal Court of Appeal on January 17, 2000 and 0.3 hours X 3 units for telephone attendance with client for a total of 2.8 hours X 3 units.
[6] Counsel for the Appellant indicated his agreement with regards to the 2.5 hours X 3 units for attendance by counsel at Federal Court of Appeal. However, he disputed the 0.3 hours X 3 units for telephone attendance with the client.
[7] Respondent argues that the claim under this item is for Court time only. That in fact, the "getting ready"time is not included and that the actual time is closer to 3.8 hours from office door to courtroom door. The 0.3 hours claimed and in dispute is, for time spent dealing with the client in the hallway at the courthouse. The hearing was in two stages. Argument by counsel took place, the Court then recessed and returned later to announce its decision. The client was not in the courtroom and since the litigant is part of the process, time was spent advising him of what took place and what the next step would be.
[8] Appellant "s position is that the Assessment Officer must look at the assessable service provided. If that service is not provided for in the tariff, then it should not be allowed. The allowance of counsel fees on the appeal covers this situation.
[9] I note that item 22 of the tariff provides for the allowance of 2-3 units per hour for counsel fee on the hearing of the appeal. In my view, the consultation with clients during and after the hearing is part and parcel of the hearing process. Item 22 does not specifically provide an allowance for consultations with clients, other counsel, or otherwise. The parties having agreed to the 2.5 hours X 3 units per hour, I am not, however, inclined to allow the 0.3 hours X 3 units as claimed.
| Item 23: Attendance on a Reference, an accounting or other like procedure not otherwise provided for in this tariff, per hour |
[10] Respondent claims 0.3 hours X 3 units per hour for review and consideration of Federal Court document on Status Review and 0.7 hours X 3 units for telephone attendance with counsel for the Department of Justice; review of Justice submission on Status Review; and memo to client on same.
[11] Respondent "s position on this item is that the Appellant did not move the appeal forward. That there would not have been a Status Review if the Appellant had moved the appeal forward or abandoned it. That the Respondent was forced to participate in the Status Review because the Appellant did not adhere to the time requirements under the Rules. That the Status Review did not take a lot of time but was a necessary step. That notwithstanding that the Status Review is not specifically contemplated by the tariff, it is however, a "procedure"and is part of the costs of the appeal, consequently properly included in this bill as an assessable item under "other like procedure".
[12] The Appellant argues that the Status Review was conducted on written representations, that the Tariff does not contemplate telephone attendance and that what is being claimed is covered under overhead.
[13] I have reviewed the Court Record and have determined that the Status Review was responded to by counsel for the Appellant by way of a one and one half page letter. The Respondent did not make any representation to the Court on the Status Review. I will allow 0.3 hours X 2 units for this item.
| Item 24: Travel by counsel to attend trial hearing, motion, examination or analogous procedure, at the discretion of the Court. |
[14] Under this item, Respondent claims 1 hour X 5 units for travel to and from the Federal Court of Appeal. Respondent"s position is that the Tariff contemplates actual time i.e. door to door. He argues that items 22 and 24 should be read together and are reasonable and assessable.
[15] Appellant argues that what is being claimed is what would normally take an eight to ten dollar taxi ride at the maximum. That one hour is excessive, even if there was a return trip.
[16] Having regard to the wording in Tariff item 24, I will remove the one hour claimed since "the discretion of the Court"referred to in that item does not extend to "an assessment officer"as described in Rule 2.
| Item 26: Assessment of Costs |
[17] Under this item the Respondent claims 6 units for a variety of work, including work done by the law clerk. Respondent"s position is that the Appellant insisted on the preparation of a Bill of Costs. Consequently, the costs of preparing the assessment were incurred by the Respondent.
[18] Appellant argues that it is a normal practice to request a Bill of Costs at the Department of Justice.
[19] Item 26 does not provide specifically for work carried out by a law clerk. Furthermore, the Bill of Costs in this matter was not an overly complicated document to prepare. Consequently, I will allow 3 units for assessment of costs.
Disbursements
[20] As previously mentioned, the parties were in agreement with regards to the disbursements claimed with the exception of the amount of $350.00 for clerk fees for attendance at Federal Court to file Factum; attendance to preparation and filing of Joint Book of Authorities (5 hours at $70.00 per hour $350.00).
[21] Respondent "s position is that this was an external clerk hired for this purpose and that the Book of Authorities and Factum had to be prepared and filed.
[22] Appellant argues that most of the costs incurred in the preparation of the Factum and Book of Authorities is covered under item 27, which has been agreed to and that invoices should have been provided relating to this disbursement.
[23] In my view, the absence of invoices or receipts does not mean that charges were not incurred. In fact, the Court Record reveals that a Factum and Book of Authorities were filed. With regard to the clerk"s involvement in the preparation of these documents, I have no evidence before me to support this part of the claim. Consequently, I will reduce the amount claimed to $140.00 to reflect the attendances by the clerk at the Federal Court offices to file the two documents. In my opinion, I am supported in this view by the words of Stinson, Assessment Officer in Garry Lloyd Ager v. International Brotherhood of Locomotive Engineers et al., Court No. A-310-97 at page 5 wherein he states:
| The absence on the Record of invoices and receipts does not mean that those charges were not necessarily incurred nor that no amounts may be assessed. |
[24] In summary, I have assessed this Bill of Costs as follows:
| Items |
Agreement Status |
Assessed and Allowed Hours X Units |
Amount |
| Item 19 |
Agreed |
7 units |
$700.00 |
| Item 20 |
Agreed |
1 unit |
$100.00 |
| Item 22 |
Partial Agreement |
2.5 hours X 3 units |
$750.00 |
| Item 23 |
Disputed |
0.3 hours X 2 units |
$100.00 |
| Item 24 |
Disputed |
0 |
0 |
| Item 25 |
Agreed |
1 unit |
$100.00 |
| Item 26 |
Disputed |
3 units |
$300.00 |
| Item 27 |
Agreed |
3 units |
$300.00 |
| FEES |
Sub-total |
$2,350.00 |
|
| G.S.T. |
$164.50 |
||
| Total |
$2,514.50 |
||
| DISBURSEMENTS |
Sub-total |
$659.30 |
|
| G.S.T. |
$46.15 |
||
| Total |
$705.45 |
||
| FEES AND DISBURSEMENTS |
TOTAL |
$3,219.95 |
[25] The Certificate of Assessment will issue in the amount of $3,219.95.
"Peter Pace"
Assessment Officer
Toronto, Ontario
July 6, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-45-97 |
| STYLE OF CAUSE: THE DEPUTY MINISTER OF NATIONAL REVENUE |
Appellant
| - and - |
| SPECIALIZED BICYCLE COMPONENTS CANADA, INC. |
Respondent
| ASSESSMENT DATE: THURSDAY, JUNE 8, 2000 |
| VIA TELECONFERENCE |
ASSESSMENT OF COSTS -
| REASONS BY: PETER PACE |
| ASSESSMENT OFFICER |
APPEARANCES VIA
TELECONFERENCE: Mr. Adrian Joseph
| For the Appellant |
Mr. Paul K. Lepsoe
| For the Respondent |
| SOLICITORS OF RECORD: Morris Rosenberg |
Deputy Attorney General of Canada
| For the Appellant |
Paul Lepsoe
Barrister & Solicitor
184 Lisgar Street
Ottawa, Ontario
K2P 0C4
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 20000706
Docket: A-45-97
BETWEEN:
| THE DEPUTY MINISTER OF NATIONAL REVENUE |
Appellant
| - and - |
| SPECIALIZED BICYCLE COMPONENTS CANADA, INC. |
Respondent
| ASSESSMENT OF COSTS - REASONS |