Date: 20010705
Neutral citation: 2001 FCT 766
BETWEEN:
NOVELL, INC. and NOVELL CANADA, LTD.
Plaintiffs
- and -
JUDE BERNIER
Defendant
ASSESSMENT OF COSTS - REASONS
ASSESSMENT OFFICER
[1] This is an assessment of the Bill of Costs submitted on behalf of the Plaintiffs Novell Inc. and Novell Canada Ltd. pursuant to the orders of the Court dated March 9, 2001 and December 6, 2000. On December 6, 2000, Prothonotary Lafrenière delivered his decision on the Plaintiffs' ex parte motion for "show cause hearing with respect to the Defendant Jude Bernier". Costs of this motion were ordered payable by the Defendant to the Plaintiffs, on a solicitor and client basis after assessment. On March 9, 2001, Justice Blais rendered a decision wherein he found the Defendant guilty of contempt of Court and ordered the Defendant Jude Bernier to pay the amount of $2,500.00 within 6 months plus the fees and disbursements incurred by the Plaintiffs. At the assessment, on May 17, 2001, the Plaintiffs amended the Bill of Costs to reflect the costs awarded by Prothonotary Lafrenière in his order of December 6, 2000. The day before the assessment, under cover of a letter addressed to Mr. Jude Bernier, the Plaintiffs advised the Defendant of the proposed amendment to the Bill of Costs. Mr. Bernier did not contest the amendment at the assessment.
[2] Item 4 was therefore amended to $1,750.50 and after hearing counsel's representations, I allow this item. Similarly, the amount claimed under item 6 for the appearance of Plaintiffs' counsel in Court on December 4, 2000 is assessed and allowed on a solicitor-client basis. However, after having reviewed the Court file, I have reduced the amount of time to 15 minutes to better reflect the actual time spent in Court. Consequently, the amount allocated under this item is reduced to $96.25.
[3] Counsel fees claimed under item 14, for the hearing held in Montreal on February 26, 2001, are allocated 3 units under Column 3 of Tariff B of the Federal Court Rules, 1998. However, the time set out under item 14 will be reduced to reflect the actual time spent in Court by counsel for the Plaintiffs, that is to say, 3 hours. The amount claimed under item 14(b) for second counsel during said hearing is denied. Item 14(b) reads as follows:
"Counsel fee: (b) to second counsel, where Court directs, 50% of the amount calculated under paragraph (a)".
There is no direction of the Court as required by said Tariff item.
[4] Item 24 is declined. The Defendant's argument on this issue was to the effect that the Plaintiffs could have used for the purpose of this file the same firm's lawyers but based in Montreal for the hearing. I cannot accept this argument since it is up to the Plaintiffs to determine who will represent them in Court. Moreover, it was to accommodate the Defendant that the hearing of February 26, 2001 was held in Montreal. Item 24 is within the Court's discretion. I, as an assessment officer, cannot replace my own discretion for that of the Court. The Court in its order of March 9, 2001 does not provide that travel time spent by counsel to attend the hearing of February 26, 2001 in Montreal be included in the assessment of these costs.
[5] Item 25 is granted as claimed.
[6] Item 26 is reduced to three units. Although I understand the Plaintiffs' argument when counsel refers to the factors set out in Rule 400(3) of the Federal Court Rules, 1998 and the alleged uncooperative conduct of the Defendant that lead to more time being spent in preparing this assessment, I do not agree with the maximum number of units claimed. I consider this an uncomplicated and straight forward assessment and will therefore allow 3 units for its preparation and presentation.
[7] The Plaintiffs claim 3 units under item 27 for "such other services as may be allowed by the assessment officer or ordered by the Court" for:
(a) Attendance at original hearing for contempt motion in Toronto on January 15, 2001, which was adjourned to February 19, 2001 to allow Plaintiffs to serve Defendant again with contempt order (French and English versions).
(b) Review of correspondence from Court; preparation and filing of further written submissions to Court; telephone attendance with Court; receipt and review of order from Court adjourning and relocating hearing to Montreal on February 26, 2001 at Defendant's request; preparation time for adjourned hearings of contempt motion.
(c) Preparations for contempt hearing in Montreal on February 26, 2001.
[8] With regards to paragraph (a), counsel mention their attendance at original hearing for contempt motion in Toronto on January 15, 2001 which was adjourned to February 19, 2001, to allow the Plaintiffs to serve the Defendant again with contempt order. On both of these days, orders were rendered by the Court; Justice Lemieux's order of January 15, 2001, reserved the costs to the Judge hearing the main matter and Justice Gibson's order of February 15, 2001 did not address the issue of costs.
[9] Under item 27, I am not empowered to allow costs on motions when the Court itself already did so or preferred not to. With regards to paragraph (b) and (c), I am of the view that it falls within the scope of indemnification under various other items in the Tariff. Therefore, item 27 will not be allowed.
[10] The amount of $220.00 claimed for services rendered by a law clerk is allowed in part since as per the Bill of Costs filed, said services were in part needed for the preparation of the Bill of Costs and this item has already been compensated for under item 26. Consequently, I will allow $110.00 for item 28.
[11] The services are assessed to $3,386.75 plus GST.
DISBURSEMENTS
[12] At the assessment on May 17, 2001, I directed the Plaintiffs' counsel to provide written representations with regards to the disbursements claim within 10 days of the date of the assessment and that the Defendant be given 10 days for its reply. As of June 28, 2001, I had not received any material from either side and I therefore, proceeded with the assessment of the disbursements in this matter.
[13] I allow the amount claimed for Binding, Tabs ($35.75), Long distance ($2.79), Facsimile ($43.70), Postage - Registered mail ($4.46), IPS Process server ($52.20), Courier ($13.25), Paquette Process server ($123.10), Cab fare ($4.67) and airport tax ($9.35), as requested by the Plaintiffs as they seem reasonable and reflect the money usually spent for this type of matter, particularly where it involves parties in two different cities.
[14] The amount of $173.20 claimed for photocopying in the Plaintiffs' Bill of Costs will be granted partially. If one divides the $173.20 by $0.25 (per page), which amount I am not ready to allow, this would total approximately 700 photocopies. Having reviewed the Court file, I do not see from the Motion Records on file anything that would lead me to conclude that there was a requirement to photocopy this number of pages for this proceeding. Therefore in the absence of any other evidence, I will allow a lump sum of $50.00 for photocopies, being a reasonable amount for photocopies in this proceeding. The Plaintiffs claim $141.36 for car rental and $28.04 for parking. Again in the absence of supportive evidence as to the necessity, I will reduce the amount claimed for car rental to $100.00 to cover the usual cab fares to and from the Montreal airport from downtown. I will reject the amount claimed for parking.
[15] Airfare to Montreal is claimed for a total amount of $1,026.00. At the assessment, counsel for the Plaintiffs mentioned that this was to cover the trip to Montreal for the hearing on February 26, 2001, for both Plaintiffs' counsel. Having regard to my assessment of item 14(b) for the appearance of a second counsel at that hearing; the Court not having directed it and having personal knowledge of airfares between Toronto and Montreal, I will only allow $513.00 for Mr. Pibus' airfare.
[16] The disbursements are assessed to $952.27 plus GST.
[17] Accordingly, a certificate of assessment will issue in the amount of $4,642.75.
"Johanne Parent"
J. Parent
Assessment Officer
Toronto, Ontario
July 5, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1781-99
STYLE OF CAUSE: NOVELL, INC. and NOVELL CANADA, LTD.
Plaintiffs
- and -
JUDE BERNIER
Defendant
ASSESSMENT WITH PERSONAL APPEARANCE OF DEFENDANT IN MONTREAL, QUEBEC AND VIA CONFERENCE CALL FROM TORONTO, ONTARIO FOR THE PLAINTIFFS ON THURSDAY, MAY 17TH, 2001.
ASSESSMENT OF COSTS -
REASONS BY: JOHANNE PARENT
DATED: THURSDAY, JULY 5, 2001
APPEARANCES BY: Mr. Kevin J. Sartorio
For the Plaintiffs
Mr. Jude Bernier
For the Defendant on his own behalf
SOLICITORS OF RECORD: GOWLINGS LAFLEUR HENSERSON LLP
Barristers & Solicitors
Patent & Trade Mark Agents
Commerce Court West, Suite 4900
Toronto, Ontario
M5L 1J3
For the Plaintiffs
Jude Bernier
1685 Springland
Ville Émard, Quebec
H4E 2E4
For the Defendant on his own behalf
FEDERAL COURT OF CANADA
Date: 20010705
Docket: T-1781-99
BETWEEN:
NOVELL, INC. and NOVELL CANADA, LTD.
Plaintiffs
- and -
JUDE BERNIER
Defendant
ASSESSMENT OF COSTS - REASONS