Date: 20000310
Docket: T-1455-95
BETWEEN:
JONAS BOOTS and RONNIE BOOTS
Plaintiffs
- and -
MOHAWK COUNCIL OF AKWASASNE
Defendant
ASSESSMENT OF COSTS - REASONS
G.M. Smith,
Assessment Officer
[1] The dispute in this action revolved around the width and location of a road allowance which runs along the eastern boundary of Cornwall Island, Indian Reserve No. 59. The Plaintiffs filed their Statement of Claim at Ottawa, Ontario, on July 10, 1995. On August 10, 1995 the Defendant responded with a Statement of Defence and Counterclaim. Toward the end of August 1995, the Defendant moved the Court for an interim injunction against obstruction, trespassing or interference by the Plaintiffs in respect to the road allowance in question. That motion was allowed by the Court in part on September 8, 1995. Costs of the motion, under Column III of Tariff B, were directed to be in the cause.
[2] The trial of this action began on November 9, 1998 at Ottawa. The Plaintiff, Ronnie Boots, appeared on his own behalf (the Plaintiffs were not otherwise represented) but left the hearing at the end of the first day after failing on two requests to the Court in respect of the status of his representation and the status of the action itself. The hearing continued through a second and third day and resumed again later that month for a fourth day of trial. The Court also heard counsel on another day in February, 1999 on the issue of costs.
[3] On March 18, 1999 an Order of the Court dismissed the main action without costs. Judgment was granted with respect to the counterclaim, however, and the Court directed the Plaintiff Ronnie Boots pay the Defendant's costs (Plaintiff-by-Counterclaim) on the counterclaim, to be assessed in accordance with the highest number of units under Column V of Tariff B of the Federal Court Rules, 1998. The Defendant (Plaintiff-by-Counterclaim) filed its Bill of Costs on July 8, 1999 seeking a total of $35,099.12 for fees and disbursements. An Appointment issued and the assessment took place before me at Ottawa on September 29, 1999.
[4] The Defendant was represented at the assessment by legal counsel. No one appeared on behalf of the Plaintiff Ronnie Boots, although served with the Appointment (affidavit of Arthur Buchanan sworn August 25, 1999). Following argument on the assessment, it appeared the Defendant had omitted to apply the hourly factor included in its Bill for certain services of counsel. A Revised Bill of Costs, which was filed on October 25, 1999 and later served on the Plaintiff, increased the Defendant's total claim to $57,071.62. Counsel requested the correction be dealt with in writing. The parties were given until February 25, 2000 to file any further submissions. Again, none were received on behalf of the Plaintiff.
[5] After hearing counsel's argument and considering the evidence produced by the Defendant (affidavit of Kimberly Melanson sworn July 5, 1999), I have assessed this Bill as follows. The costs claimed under Item 1 of the Tariff for fees in respect of an originating document are refused. It was the Plaintiff who originated these proceedings, not the Defendant. Services relating to the Defendant's Counterclaim, however, are allowed as claimed under Tariff Item 2.
[6] The claim under Item 4 for preparation of an uncontested motion, which I presume relates to the application for security for the costs of this action, is allowed. The costs of the contested motion for an injunction are reduced to the Column III maximum of 7 units, in accordance with the specific directions of the Court on September 8, 1995 to that effect (supra). The claim for appearance on those motions will be adjusted to reflect the portion of time, at the Column III level, that counsel spent in arguing the injunction motion (4.5 hours). Finally, as to costs for the services of counsel, and after carefully reviewing the Court record and having examined the time spent by counsel on the other events in these proceedings, I allow in full the remaining items of services claimed in the Defendant's Bill.
[7] As to the matter of Goods and Services Taxes (GST), counsel confirmed at the assessment that no GST is payable by the Mohawk Council of Akwasasne. GST appeared only in the Defendant's original Bill. It was withdrawn from the revised Bill. None is allowed on this assessment.
[8] As to the matter of disbursements, and as I explained at the assessment, an issue has arisen from time to time about computer research costs, in this case Quicklaw searches, and whether they are distinguishable from the overhead costs of a law firm, the premise being that overhead costs are already reflected in counsel fees. I am satisfied from counsel's explanation, however, that the research conducted in respect of this particular counterclaim was necessary and the costs claimed by the Defendant were reasonably incurred. The other disbursements are supported by the evidence contained in the affidavit of K. Melanson sworn on July 5, 1999. They appear to be reasonable and necessary in the circumstances of these proceedings and are allowed with the following exceptions.
[9] Agency fees are claimed in an amount of $2,424.19. The Melanson affidavit is not especially helpful in clarifying the nature of these fees, or their relevance to the counterclaim. Nor, for that matter, was counsel at the assessment able to expand on this justification. It would seem unreasonable in my view, in a party-and-party context and in the particular circumstances of this case, to expect the unsuccessful party to be burdened by this cost. It is therefore disallowed.
[10] An amount of $50.00 was also claimed for "stored file retrieval". The Melanson affidavit refers to this disbursement as a fee charged by the Court. I am aware of no such fee charged by this Court and counsel was unable to support this claim. It is taxed off. I have also refused the Defendant's claim for $7.60 for "Office Supplies". This is clearly an item of overhead already compensated in the fees allowed to counsel.
[11] In conclusion, the costs of the Defendant/Plaintiff-by-Counterclaim are assessed and allowed in the amounts of $44,250.00 for fees and $7,739.83 for disbursements. A Certificate of Assessment will issue in the total amount of $51,989.83.
Sgd. (Gregory M. Smith)
Gregory M. Smith
Assessment Officer
Ottawa, Ontario
March 10, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: T-1455-95
JONAS BOOTS and RONNIE BOOTS
Plaintiffs
- and -
MOHAWK COUNCIL OF AKWASASNE
Defendant
ASSESSMENT HEARD AT OTTAWA, ONTARIO ON SEPTEMBER 29, 1999 AND
IN WRITING
REASONS BY: G.M. Smith, Assessment Officer
DATE OF REASONS: March 10, 2000
APPEARANCES:
No one appearing for the Plaintiffs
Daniel J. Leduc for the Defendant
SOLICITORS OF RECORD:
Lang Michener
Barristers & Solicitors
Ottawa, Ontario for the Defendant