Date: 20050315
Citation: 2005 FC 373
BETWEEN:
VIDEO BOX ENTERPRISES INC. and TVBO PRODUCTION LIMITED
Plaintiffs
and
ZHEN KUN PENG
Defendant
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This assessment of costs is pursuant to a Reasons for Order and Order of the Court rendered March 30, 2004, relating to the Plaintiffs' motion for summary judgment arising from a statement of claim alleging copyright infringement. The Court allowed the Plaintiffs' motion and ordered " ...(g) costs and disbursements in an amount to be assessed; ..." as part of its order.
[2] The Plaintiffs filed their Bill of Costs on October 12, 2004.
[3] A letter was issued setting a timetable for written submissions and supporting material. The Plaintiffs' filed a Plaintiffs' Record with proof of service within the assigned time frames.
[4] It should be noted that the directions setting out a timetable for serving and filing of all materials were sent to the Plaintiffs' and Defendant's solicitors of record. On December 15, 2004, the Toronto Registry received a letter of submissions from the Defendant himself, Mr. Zhen Kun Peng. In the first line of his correspondence, Mr. Peng refers to receiving a telephone call on December 4, 2004 from his solicitor's office in reference to the Bill of Costs. Mr. Peng's letter confirms to me the Defendant's solicitor was aware of the timetable for filing material.
[5] It should be further noted that the Defendant's letter in opposition to the Plaintiffs' Bill of Costs is quite brief. In addition, this correspondence which could assist me in identifying issues does not dispute any of the counsel fees or disbursements. This latter correspondence basically indicates that the Defendant may suffer great hardship as a result of his inability to pay these costs.
[6] With regard to the latter issue of the Defendant's alleged inability to pay, I refer to the reasons of the Addy, J. in William (Billy) Solosky v. Canada (1977) 1 F.C. 663:
... I can see no reason whatsoever why a person in the position of the plaintiff should be afforded special treatment regarding costs which would not be enjoyed by an ordinary citizen. Furthermore, in deciding whether costs should or should not be awarded against an unsuccessful plaintiff, neither the ability to pay nor the difficulty of collection should be a deciding factor but, on the contrary, the awarding or refusal of costs should be based on the merits of the case. Unless special circumstances exist to justify an order to the contrary, costs should normally follow the event. No such circumstances exist here. ...
I share this belief that the inability to pay cannot be a consideration in assessing the costs before me.
[7] With regard to the Defendant's response, even though it was quite sparse in substance as I noted above, the Federal Courts Rules, 1998 do not allow an assessing officer to step away from a position of neutrality to act as the litigant's advocate in challenging given items in a Bill of Costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of a judgment and tariff. I have examined the assessable services and disbursements within those parameters.
[8] This assessment of the Bill of Costs is proceeding by way of written submissions. It is my respectful opinion that they were quite simple in nature and the Defendant did participate in the filing of materials in opposition to the Plaintiffs' Bill of Costs. I allow all the Items claimed in Tariff B with the exception of Item 26 which I reduce to 2 units ($220.00) for reasons I have outlined in the first two sentences of this paragraph. Plaintiffs are allowed a total of 50 units ($5,500.00) plus applicable GST.
[9] The Plaintiffs' are claiming disbursements in the amount of $7,601.68. I note there may have been items which could possibly have been challenged but were not, so I rely on the reasons of Taxing Officer, Charles E. Stinson inGrace M. Carlile v. Her Majesty the Queen, [1997] 97 D.T.C. 5287:
... 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. ...
Further, Phipson on Evidence, Fourteenth Edition (London: Sweet and 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 on the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donation of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd. ...
In my opinion, the Plaintiffs have substantiated their disbursements with their affidavit and submissions and therefore, I allow the entire disbursement of $7,601.68 (plus GST of $19.86 on $283.75) since in my opinion they appear to be reasonable and justified.
[10] The Bill of Costs in T-822-03 is assessed and allowed in the amount of $13,506.54 which includes assessable services of $5,500.00, disbursements of $7,601.68 and GST of $403.86. A certificate is issued in this proceeding for $13,506.54.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
March 15th, 2005.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-822-03
STYLE OF CAUSE: VIDEO BOX ENTERPRISES INC. and TVBO PRODUCTION LIMITED
Plaintiffs
and
ZHEN KUN PENG
Defendant
ASSESSMENT WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON
DATED: MARCH 15, 2005
SOLICITORS OF RECORD:
WEISDORF McCALLUM & TATSIOU:Associates
Barristers & Solicitors
Toronto, Ontario FOR THE PLAINTIFFS
Edward F. Hung
Barrister-at-Law
Toronto, Ontario FOR THE DEFENDANT