New Era Cap Company v. Capish? Hip Hop Inc.

New Era Cap Company v. Capish? Hip Hop Inc. Court (s) Database Federal Court of Appeal Decisions Date 2006-11-08 Neutral citation 2006 FCA 364 File numbers A-323-05 Decision Content Date: 20061108 Docket: A-323-05 Citation: 2006 FCA 364 BETWEEN: NEW ERA CAP COMPANY, INC. and NEW ERA CAP COMPANY Appellants and CAPISH? HIP HOP INC., CAPISH? SILVER INC., CAPISH? BLING BLING INC. and NASSER DAHOUI FORMERLY IDENTIFIED AS JOHN DOE IN ACTION NO. T-346-05 Respondents ASSESSMENT OF COSTS - REASONS PAUL G.C. ROBINSON ASSESSMENT OFFICER [1] This is an assessment of costs pursuant to the Judgment dated February 14, 2006 by the Federal Court of Appeal which dismissed with costs the appeal by New Era Cap Company, Inc. and New Era Cap Company. The Notice of Appeal arose from an Order of the Federal Court dated June 30, 2005 on Court File No. T-798-05 that dismissed the Appellant’s Motion for a Contempt of Court Order against the two Respondents, Capish? Hip Hop Inc. and Nasser Dahoui. [2] On August 23, 2006, the Respondents filed their Bill of Costs and requested an assessment of costs. [3] On the same date, I forwarded correspondence to the parties informing them that this matter was appropriate for disposition by way of written submissions and set a timetable for the filing of all materials. All supporting and opposing materials of the respective parties regarding the assessment of costs were submitted within the timeframes which included an Amended Respondents’ Bill of Costs. [4] It should be noted that the unit value for assessable services in Section 4 of Tariff B of the Federal Courts Rules was increased to $120.00 on April 1, 2005. This amount was confirmed as the present Tariff B unit value in the spring of 2006 and this will be the unit value that I will be using in my assessment of the Respondents’ Bill of Costs. I. Assessment [5] In the Amended Bill of Costs, the Respondents have claimed 3 units for its item 24 - Travel to hearing. The Respondents in the Submissions of the Respondents at paragraph 5 have indicated “that the legal counsel for the Respondents had to travel to and from their offices in north-western Mississauga, Ontario in order to attend this hearing in downtown Toronto, a trip of approximately two hours to the hearing and one hour from the hearing. As such, item 24 should be allowed.” The Appellants have objected to the Respondents’ claims for this specific assessable service and refer to the decision of Baker Petrolite Corp. v. Canwell Enviro-Industries Ltd., [2002] F.C.A. 482 (F.C.A.) which the Appellants have indicated supports their objections. [6] It is worthy to note that item 24 of Tariff B of the Federal Courts Rules, actually reads: 24. Travel by counsel to attend a trial, hearing, motion, examination or analogous procedure at the Direction of the Court. Although the Appellants have referred to Baker Petrolite Corp., supra in support of their objections to the travel assessable services claimed by the Respondents, I prefer to rely on the reasons in Beaulieu v. Canada, [2000] F.C.J. 2127 (TO) at paragraph 10 which states: ... In item 24 of the bill of costs the respondent claimed the sum of $500 for travel by counsel. In her written submissions in reply Ms. Lavergne was prepared to reduce this amount to $100. At the same time, the appellant based her objection on the phrase "at the discretion of the Court" contained in item 24, which she submitted did not extend to the assessment officer where no specific directions to that effect had been given. The appellant is correct: only judges have the discretionary authority to compensate counsel for travel. I have reviewed the material in the Court record and have determined that no such direction exists, therefore Item 24 is disallowed. [7] The Appellants have objected to the Respondents’ claim “for 5 units for preparation for trial” and submit that this Tariff B item “has no application to an Appeal to the Federal Court of Appeal from the findings of a Trial Judge.” I do not agree. I note that item 13(a) of Tariff B of the Federal Courts Rules actually reads: 13. Counsel Fee: (a) preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff; [Emphasis is mine] In my opinion in this specific instance, the key phrase is “preparation for trial or hearing”. I find it reasonable that a solicitor about to appear at a hearing before the Federal Court of Appeal would review all the submitted arguments and associated case law prior to attending the scheduled hearing. For these reasons, common sense dictates to me that that the Respondents should be allowed to claim for preparatory work associated with this Federal Court of Appeal hearing. Therefore, I exercise my discretion and I allow the 5 units ($600.00) claimed for this assessable service. [8] The Appellants in their submissions at paragraph 9 have indicated that “costs per unit cannot and should not exceed the actual hourly rate charged to the client. Therefore, the Appellants have no objection to an award of costs to 22(a) for the five hours claimed at the billed unit of $200.00 per hour.” I note that item 22(a) is actually calculated by multiplying the number of hours associated with the hearing by the unit value claimed by the Respondents. Notwithstanding the Appellants novel argument regarding this assessable service, I am not persuaded that I should depart from the Tariff B method of calculating item 22(a) – Attendance by 1st counsel (5 hours x 3 units per hour). Therefore, I allow the 15 units ($1,800.00) for this assessable service. [9] The Appellants have indicated in their submissions that they have no objections to the Respondents’ claim for item 19 – Preparation of Factum & Book of Authorities and item 25 – Services after judgment not otherwise specified for 7 units and 1 unit respectfully. Therefore, I allow a total of 8 units ($960.00) for these assessable services. [10] This assessment of the Respondents’ Bill of Costs has proceeded by way of written submissions. It is my opinion that they were simple in nature and both parties did participate in the filing of materials which did assist me in the assessment of the Bill of Costs. I reduce Item 26 (Assessment of costs) to 2 units ($240.00) for the reasons I have outlined in the first two sentences of this paragraph. [11] The Appellants have indicated that they have not taken any issue with the disbursement amounts plus associated GST requested for this Bill of Costs. I have noted that the three exhibits associated with the disbursements evidence contained in the Affidavit of Hyder Masum, sworn September 7, 2006, included the GST in their respective totals. I have assumed the entire disbursement amount includes GST based on the sparse information that has been offered to support the amount claimed. For greater clarity, I only allow this amount for disbursements plus the associated GST since I do not wish to allow a duplication of the consumption taxes. Therefore, I allow the $576.75 for disbursements in its entirety which includes the GST. [12] The Respondents’ Bill of Costs in A-323-05 is assessed and allowed in the amount of $3,600.00 for assessable services plus associated GST of $216.00 and disbursements of $576.75 which includes applicable GST for a total of $4,392.75. A certificate is issued in this Federal Court of Appeal proceeding for $4,392.75 payable by the Appellants to the Respondents. “Paul Robinson” Paul G.C. Robinson Assessment Officer Toronto, Ontario November 8, 2006 FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-323-05 STYLE OF CAUSE: NEW ERA CAP COMPANY, INC. and NEW ERA CAP COMPANY v. CAPISH? HIP HOP INC., CAPISH? SILVER INC., CAPISH? BLING BLING INC. and NASSER DAHOUI FORMERLY IDENTIFIED AS JOHN DOE IN ACTION NO. T-346-05 ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES ASSESSMENT OF COSTS - REASONS BY: PAUL G.C. ROBINSON, Assessment Officer DATED: November 8, 2006 SOLICITORS OF RECORD: Kestenberg Siegal Lipkus LLP Toronto, Ontario FOR THE APPELLANTS Mangal & Masum Mississauga, Ontario FOR THE RESPONDENTS