Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd.
T-1602-86
Stinson T.O.
26/10/94
20 pp.
Patent infringement action dismissed with costs to defendant-Defendant presenting party and party bill of costs-Plaintiff objecting to certain fees, disbursements-Defendant presenting receipts, chits accumulated over several years, but without ongoing, current posting to immediately label them with purpose, organize them so as to permit meaningful reconstruction, association with events in litigation-Supporting affidavit merely grouping items by category-Although cost of proving some items often exceeding worth, some balance should be struck-Defendant simply inviting plaintiff, taxing officer to attempt to make sense of records-Erroneous assumption entitled to indemnification for fees, disbursements simply because paid, affidavit making bald, uncontradicted assertion of relevance-Best approach to costs not predicated on narrow or technical threshold, but greater extent to which taxing party relies on that precept, i.e. providing less than complete proof, the more it must live with conservative exercise of discretion necessary to preclude prejudice to respondent at taxation-As defendant's counsel officer of Court, and given rough and ready aspect at times of taxation, limited supplementation of facts in oral submissions at taxation permitted-Fee for examination for discovery allowed as presented-As to doubling costs pursuant to R. 344.1 where unrevoked settlement offers, necessary to determine whether R. 344.1 inconsistent with Tariff B(2)-Tariff B(2) providing no amounts for fees, disbursements other than those in Tariff B(1) shall be allowed "unless the Court otherwise allows or directs pursuant to Rule 344"-Doubling contemplated by R. 344.1 not adding categories of amounts to Tariff B(1), but affecting existing amounts possibly putting proposed additional amount (that portion of doubled figure above limits in Tariff B(1)(1)) within restriction imposed by Tariff B(2) i.e. requiring order-R. 344.1(2)(b) suggesting defendant entitled to doubling without necessity of order thereunder or prior exercise of Court's authority for costs under R. 344(1)-Court implicitly exercising R. 344(1) authority by judgment-Nothing suggesting Court aware of settlement offers in context of R. 344(3)(g)-Explicit and visible exercise of Court's authority under R. 344(1) not necessary to trigger R. 344.1-Portion of judgment denying success to plaintiff, coupled with evidence of unrevoked offers of settlement independent of R. 344, triggered defendant's entitlement-R. 344(1) vesting Court with authority to override entitlement-Effect to make R. 344.1 inconsistent with Tariff B(2)-As best to choose positive applications of provisions, as opposed to narrower, negative ones in administration of scheme of costs, R. 344.1 applied as additional provision to Tariff B(2), operative on own limited circumstances as opposed to being special or limited provision subservient to Tariff B(2)-Evidence not providing "special reasons" necessitating additional cost of junior counsel under B(1)(1)(i)-Objection to disbursements for postage on lack of factual basis by which Taxing Officer could conclude reasonably necessary or relevant-Issues of proof occurring in litigation often as function of increasing pressures of practice of law-Taxing Officer's reluctance to provide absurd result at taxation by certifying bill of costs at zero dollars to prejudice of client, when obviously some dollars spent to advance litigation, balanced against need to exercise discretion conservatively to protect interests of respondent at taxation-Concerning expert witness fees, new Rules, Tariff not requiring prior direction authorizing taxing officer to tax expert bill at actual amount charged-Restriction in old Tariff B(2)(2)(a) not carried forward into new Tariff B(1)(2)(a)-Test proposed by Tariffs A, B not to reduce disbursements to lowest common denominator, particularly in face of disinterested business relationship without collusion between expert selling services and litigant purchasing services to fill void in expertise requisite to success in litigation-Expert's role in litigation can be indemnified via Tariff A(4)(2) and Tariff B(1)(2)(b)-Test whether, in circumstances existing when counsel made decision to incur expenditure, represented prudent representation of client, both in terms of leading and responding to R. 482 expert evidence, and of filling void of technical expertise requisite to solicitor's preparation and conduct-Federal Court Rules, C.R.C., c. 663, R. 344 (as am. by SOR/87-221, s. 2), 344.1 (as enacted by SOR/94-41, s. 3), 346(1.1) (as enacted by SOR/887-221, s. 3), 482, Tariffs A (as am. by SOR/86-319, ss. 2, 3; 92-43, s. 22), B (as am. by SOR/87-221, s. 8).