Dableh, v. Ontario Hydro
T-1422-90
Stinson T.O.
2/11/94
16 pp.
Patent infringement action dismissed with costs-Defendant presenting party and party bill of costs at $99,671.18-Defendant submitting maximums for fee items justified as trial requiring 25 days due to complexity of legal, factual issues-Lengthy reasons allegedly confirming volume, complexity-Plaintiff submitting maximum fees inappropriate because no costs taxable relative to counterclaim (validity), and counterclaim consuming significant amount of time at trial-Submitting $600 per day for inhouse lawyer excessive and not reflecting cost for taxing party-Bill of costs taxed and allowed at $78,060.94-Plaintiff's submissions concerning inhouse counsel given no weight-Infringement action belonging in upper portion of Tariff items, but not at maximum-Not much weight given to mix of issues of infringement and validity, inducement and quantity-Authorities clearly indicating counterclaim existing independently and therefore generating independent bill of costs-As to disbursements, defendants' submission forced to come to Court unnecessarily not given much weight in world commonly perceived as increasingly litigious-Test, 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, not to cut experts' accounts down to some lowest common denominator-Evidence of real invoices received and paid-Test for indemnification of disbursements not function of hindsight but whether in circumstances existing when litigant's solicitor deciding to incur expenditure, represented prudent, reasonable representation of client both in terms of leading, responding to R. 482 expert evidence and of filling void of technical expertise requisite to solicitor's preparation and conduct-Plaintiff's suggestion to lower rates rejected-Experts charge different rates as function of particular discipline, market, location-Expert witness representing business: loss of weekend cost of doing business so far as plaintiff's obligation for indemnification in this lawsuit concerned-First, eighth days taxed off-In scheme of costs taxing party obliged to do more than simply accept, pay bills without some sort of preliminary filtering process i.e. breakdown of charges by purpose, rates, hours-Dollars taxed off not penalty for deficiency of proof (one-line invoice), but measure of extent to which discretion could be exercised to compensate for deficiency and still achieve most realistic indemnification in circumstances-Plaintiff objecting to full-fare economy ticket for trip to England to interview witness-With evolving technology, facsimiles, photocopies, and features readily tying them to specific piece of litigation, reality of litigation to which scheme of costs relative to indemnification between litigants slowly adapting-Economy fares versus business or first-class fares previously approved with comment should be norm-Given volatility at times of legal schedules and need for adjustments on short notice, fare savers (usually with penalty clauses of varying severity) should not yet be norm-Economy fare allowed-Federal Court Rules, C.R.C., c. 663, Tariffs A (as am. by SOR/86-319, ss. 2, 3), B (as am. by SOR/87-221, s. 8).