Dableh v. Ontario Hydro
A-539-93
Stinson T.O.
31/3/98
89 pp.
Taxation of revised bill of costs at party and party level-On June 5, 1996, Federal Court of Appeal allowed appeal with costs in both Appeal and Trial Division, set aside judgment of Trial Division of September 17, 1993, dismissed cross appeal without costs, as between parties, declared certain claims of subject patent valid and enjoined respondent and others from inducing use, by Hydro-Québec or New Brunswick Electric Power Commission, of LIM apparatus as part of SLAR or any similar apparatus where such use would constitute infringement of patent-One of longest patents trials on infringement and validity ever before Court-Taxation of cost philosophy stated in Sanmammas Compania Maritima S.A. v. The Netuno (1995), 102 F.T.R. 181 (F.C.T.D.): under old regime, parties could not expect to recover all costs under tariff relating to party and party costs; general philosophy under new rule party and party costs should bear reasonable relationship to actual costs of litigation; however, party who has not been diligent will have to pay for consequences in determination of taxation of costs-Revised bill of costs presented at $537,635.18 representing approximately 60% of plaintiff-appellant's costs for litigation-Litigation unique for not having severed issues of damages under R. 480: ultimately this further complicated trial-Complexity evidenced by fact judgment rendered 15 months after trial, and Court of Appeal took about 6 weeks to deliberate-FCA's reasons in review of Trial Judge's rationale indicating litigation more complex throughout than reflected in November 1994 taxation of defendant's bill of costs further to trial judgment, and Court should now adjust accordingly-Test for value assigned should be neutral; not relative to difficulty or effort by individual solicitor, but rather what were challenges and consequences of subject litigation: Carlile v. Canada (Minister of National Revenue-M.N.R.) (1997), 97 DTC 5284 (F.C.A.)-Whereas plaintiff sought tens of millions of dollars in damages, none awarded-Solicitor-client costs herein will approximate actual costs of litigation-Party and party costs allowed under new rule will bear reasonable relationship to actual costs-Federal Court of Appeal settled issues apparently without undue or novel difficulties-Plaintiff asserting defendant caused unnecessary costs by contesting motions even if they did not proceed, and so seeks fees for contested motions which did not proceed-Situation covered by Tariff B, Part II, item 4, concerning uncontested motions, not item 5 concerning contested situations-R. 344(6) applicable-Tariff B addressing all taxable events in litigation but not necessarily all events, i.e. settlement discussions-No basis to argument permissible if amount taxed for given individual event exceeded actual amount for event paid by client to lawyer, as total dollars on taxation allowed for all taxable events would be less than actual dollars paid by client to his lawyers for all of those taxable events-Note: as process of taxation rough and ready justice, some latitude appropriate and supplementation of evidence allowed in argument for taxation-Where litigant pressures opponent for something, meets resistance or apathy, prepares and files motion, prepares for anticipated contested hearing, secures capitulation after incurring significant costs and appears in Court to get consent order to ensure compliance, Tariff B not expressly including this as taxable event, but R. 344(6)(b) possible avenue of relief-Although appellant had to resurrect his case partly through demonstrating Trial Judge failed to appreciate respondent's experts not at odds with appellant's experts on relevant points, as confirmed by Court of Appeal, latter did not appear to have much difficulty in resolving issues, and preparation of memorandum of fact and law not warranting maximum-Disbursements-Given importance of expert witness to plaintiff's case, and given success on appeal relative to resurrection of plaintiff's technical evidence, $31,297 bill justified-Plaintiff claimed $51,334 for expert evidence given by chartered accountant on issues of profits realized by, or damages caused by, defendant as result of infringement justified ($21,000,000 in revenue received by defendant relative to technology; potential savings of $185,000,000 for Hydro-Québec and New Brunswick Electric Power Commission if they had used technology)-Also argued given absence of R. 480 order severing hearing of damages, considerable dollars potentially at stake, expert's experience in Court proceedings and extent of actual work required, expense, in full, prudent in circumstances then, regardless of fact Court of Appeal ultimately held did not have to address profits and damages-$39,252 allowed-Nothing allowed for preparation of expert not called as expert witness as plaintiff decided to call other expert with more expertise-Nothing allowed for third parties performing work (organization of documents, copies of legal authorities, historically addressed within ordinary partial indemnification of professional fees associated with solicitor having conduct of litigation-Appellant's miscellaneous costs characterized as akin to "shoebox" accounting approach for variety of things over course of litigation-Including meals to entertain potential investors to finance litigation and conversion of part of residence to office dedicated to litigation-Only minimal amounts allowed-1,600 receipts, taken cumulatively, stretched credibility, and coloured almost all of others having no detail whatsoever as to participants, purpose, relevance-Technology and streamlining significant today: practice of law and phenomenon of litigation have reacted in measured stages; as example, use of computer-assisted research of jurisprudence outlined in Recovery of Legal Research Expenses in Taxations and Assessments of Costs, Advocate, vol. 55, Part 1, January 1997, p. 79-Appellant appeared to assert discount, during life of litigation, and to be borne by Ontario Hydro, on the outfitting and operation of his personal residence until challenged on cross-examination-As for financing, and judging by number of meals and toll calls throughout, several participants but not one name of any investor, potential or actual, nor accounts of funds raised disclosed on record-No dollars taxable therefor-Granting of interest on taxed costs not function of taxing officer, matter for presiding judge-Appellant presented $537,635.18, and several thousand dollars subsequently, for taxation-Revised bill of costs of appellant taxed and allowed at $22,813-Revised bill of costs for plaintiff taxed and allowed at $221,980-Federal Court Rules, C.R.C., c. 663, R. 344(6) (as am. by SOR/87-221, s. 2), Tariff B (as am. idem, s. 8).