Date: 20020301
Docket: T-1192-97
Neutral citation: 2002 FCT 232
BETWEEN:
TOP NOTCH CONSTRUCTION LTD.
Plaintiff
- and -
TOP-NOTCH OILFIELD SERVICES LTD.
Defendant
Assessment Officer
[1] The Plaintiff's action was dismissed with costs to the Defendant. I directed that assessment of the Defendant's bill of costs proceed by way of written submissions.
The Defendant's Position
[2] The Defendant noted that it is a small, recently established, company and that its operations were significantly interrupted because Kelly MacNutt, its president, had to travel to Calgary to testify at the trial. The Defendant asserted that the affidavit supporting the bill of costs addresses time and amounts for counsel fees and disbursements respectively as a function of the Client Detailed Time and Expense Report. The Defendant noted that $1,485.00 (I have not included the parties' positions on an additional $705.00 associated with a company truck because it was not claimed) were claimed for Mr. MacNutt under Tariff A3(3) as an additional cost payable and "equal to the expense or any loss incurred by the witness in attending a proceeding" because his attendance caused him to miss three days of consulting work.
[3] In rebuttal, the Defendant asserted that Mr. MacNutt's attendance throughout the trial, as witness and as corporate representative, drastically affected operations of a small company of three employees. The Defendant agreed that misconduct is not a factor here, but argued that maximum fees are appropriate given the disparity in size and operations of the parties and the relatively high costs for the Defendant. The Defendant asserted that separate calculations of time, for each fee item in turn, precluded double counting of time. The Defendant asserted that item 11 was rounded up from 3.9 to 4.0 units to avoid the fractions prohibited by Tariff B2(2). The Defendant argued that the precedent bill of costs on the Court's web site provides for both provincial and federal taxes.
The Plaintiff's Position
[4] The Plaintiff argued that maximum fees should be allowed only as a punitive measure for instances of misconduct, if a case is obviously frivolous or if the litigation is very complex and difficult. The Plaintiff argued that misconduct was not present and that the Court did not characterize this case as frivolous. The lack of complexity is demonstrated by the transcript, which disclosed discovery of each party in turn on a single day for a total of three hours, and not the five hours claimed for item 9 (attendance). The Plaintiff argued that this discrepancy results from the reliance on counsel's time sheets, ie. preparation time, already addressed under item 8, is claimed again as a function of counsel's travel time, which was brief, as reflected in those time sheets. The Plaintiff advanced the same argument for item 11 (attendance at conference) on the basis that the actual total time for the two pre-trial conferences was less than the 1.3 hours claimed meaning that preparation time was included after already being claimed under item 10. The Plaintiff argued that the calculated total of 3.9 units for item 11 should have been rounded down, instead of up, particularly given the Defendant's insistence on maximum units. For item 14(a), the Plaintiff argued that the trial did not take the 18 hours claimed over 2 days, and therefore the Defendant again includes preparation time already claimed under items 13(a) and 13(b). The Plaintiff argued that GST is not chargeable on costs.
[5] The Plaintiff argued that there was no evidence of lost income by Mr. MacNutt, or by the corporate Defendant, as a function of his attendance as a witness, and further, that there was no evidence of Mr. MacNutt's normal daily rates, lost billings or contracts. The Plaintiff asserted that Mr. MacNutt was a witness for approximately one hour in a two-day trial, yet three days of corporate income (profit included) are claimed, and not simply loss sustained by Mr. MacNutt. The Plaintiff argued that Tariff A3(3) does not authorize normal business charges of a corporation if an employee attends as witness. Further, Mr. MacNutt attended as a corporate officer instructing counsel, rather than as a witness.
Assessment
[6] I concluded at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen (T-66-86B on September 7, 2001: 2001 FCT 999) that the same point in the ranges throughout the Tariff need not be used, as each item for the services of counsel must be considered in its own circumstances. My reading of the documents comprising the court file is that this matter was neither the most difficult, nor the simplest, to litigate. For items 2 (pleading); 7 (document discovery); 8; 10; 13(a) and 13(b), I allow 6; 3; 5; 4; 4 and 3 units respectively. For item 9, the evidence is scanty. The Plaintiff's submissions asserted a one-hour break (presumably lunch) between the conclusion of the Defendant's discovery and the start of the Plaintiff's discovery. I allow three hours total at 2 units per hour. For item 11, the issue of fractions is not really a problem here because the formula in Tariff B2(1) necessarily requires that the number of units be first allocated to the assessable service before multiplication by the number of hours. I note that the Tariff does not prohibit fractions of hours: hearing times vary widely. The Abstracts of Hearing disclose 25 minutes and five minutes respectively for the two pre-trial conferences. The reality of attendance at court hearings includes getting settled in the hearing room and therefore abstracts of hearing are relevant, but not necessarily determinative. Instead of the 1.3 hours claimed, I allow one hour for item 11 at 2 units per hour. For item 14(a), the Abstract of Hearing discloses a total of 13 hours 15 minutes inclusive of breaks. I allow eight hours at 2 units per hour and four hours at 3 units per hour. Except for the $1,485.00 addressed below, I allow all other disbursements as claimed, including GST as addressed by Tariff B1(3)(b).
[7] The evidence supporting the $1,485.00 is a ticket written by Mr. MacNutt on his firm's letterhead for "Missed Work Because of Court". It represents his estimate of his market value as opposed to a confirmed contract, not fulfilled because of his attendance at trial, with some third party. I make no comment on the sufficiency of that evidence for the purposes of Tariff A3(3). Instead, while I am not aware of case law on point, I doubt that provisions in court tariffs for witness expenses, presumably designed to assist in securing the best possible evidence for courts, are intended to address the lost income of litigants. The wording of Federal Court Tariff A3(1) [my emphasis in both examples], "... a witness is entitled to be paid by the party ...", and of Tariff A3(3), "A party must pay a witness", implies that a "witness" is distinguishable from the "party" making payment. That concept fits with the historic view of a disbursement as payment out of pocket to a disinterested entity for performance advancing litigation. Further, I do not think that Tariff A3(1) and (3) authorize payment, to the litigant as witness, of some amount for what might have been, but for attendance at trial either as witness or to instruct counsel. In some jurisdictions, such as Schedule IV "A" in the Tariff of Costs to The Queen's Bench Rules of Saskatchewan, the definition of witness in a cause before a court specifically excludes the party of that cause and, if a corporation is a party, an officer of that corporation. That Mr. MacNutt gave evidence for approximately 1.5 hours on the morning of the second day of trial, and likely spent his other time either adjusting his instructions to counsel or preparing to give evidence, are irrelevant factors. I conclude that Tariff A3(1) and (3) do not apply to the litigant as witness in his own cause and therefore I disallow the $1,485.00.
[8] The Defendant's Bill of Costs, presented at $15,389.41, is assessed and allowed at $8,843.31.
(Sgd.) "Charles E. Stinson
Assessment Officer
Vancouver, B.C.
March 1, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1192-97
STYLE OF CAUSE: Top Notch Construction Ltd v. Top-Notch Oilfield Services Ltd.
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE
OF PARTIES
REASONS FOR ASSESSMENT OF COSTS BY: CHARLES E. STINSON
DATED: March 1, 2002
SOLICITORS OF RECORD:
Mullen Craig for the Plaintiff
Calgary, Alberta
McCarthy Tétrault for the Defendant
Calgary Alberta