C & B Vacation Properties v. Canada
T-1160-90
Wendt T.O.
2/12/97
27 pp.
Judgment granting solicitor-client costs in favour of plaintiffs-Case involving expropriation of subdivision named "La Corniche du Parc" in Gatineau Park-Several lots sold before development frozen by expropriation-Subdivision unique as prospective purchasers secure in knowledge there would be no construction around subdivision, and would be green area for eternity-Defendant submitting scale of costs in expropriation cases less liberal than in other solicitor-client taxations because: costs paid by another party who had no say in services being retained; plaintiffs not unwilling litigants; costs must be both reasonable and necessary and directly related to expropriation proceedings; carte blanche approach not appropriate-Also submitting amount claimed as costs disproportionate to amount of Court's award-Plaintiffs arguing reasonableness should be sole criterion as expropriation one of most intrusive of legal procedures-Plaintiffs entitled to full compensation of expenditures that were reasonable at time incurred-Criteria to consider in establishing whether expenditure reasonable outlined in Camp Robin Hood Ltd. v. R, [1982] 1 F.C. 19 (T.D.): (1) amount of offer; (2) amount of award; (3) complexity of issues involved; (4) skill and competence required to present issues; (5) experience of solicitors and counsel; (6) time expended on preparation; (7) fees allowed in Tariff B as possible comparable guide-This approach not amounting to "Crown cheque made out in blank"-Defendant submitting as award 23% more than offered, more conservative application of solicitor-client costs appropriate-Crux of issue whether plaintiffs proceeding prudently in mounting legal case in view of success achieved; accordingly, whether reasonable to have related costs indemnified by opposing party-Plaintiffs' success significant, substantial: additional compensation of $823 000 beyond defendant's offers totalling $1 520 000-Cannot as general principle reduce costs because of limited success-Award not reduced on ground not complex-Case involving issues of greater than normal complexity in expropriation proceeding, involving assessment of developers' profit, development and selling costs, number of lots amenable to development, projected pace of sales-In Desjardins v. National Capital Commission (1982), 25 L.C.R. 205 (F.C.T.D.), Cattanach J. stating expropriated party to be saved harmless from any cost caused him by registration of notice of intention to expropriate property-Entitled to ascertain legal rights, amount of compensation may claim consequent upon Crown's action, and to be reimbursed for costs antecedent to beginning of action-Hourly rate charged by various counsel main issue with respect to account of Nelligan Power (law firm replacing Beaudry Bertrand as counsel for plaintiffs)-Plaintiffs claiming premium rates-Defendant submitting hourly rates ($350), daily rate for trial ($2800) claimed for Mr. Burrows, hourly rates for Ms. Devlin ($165) and Mr. Champagne ($135) too high-Submitting rates for Ms. Devlin, Mr. Champagne excessive in view of dates of call to bar-Also objecting to Mr. Burrows' daily rate being charged for two of days when only brief appearance, and submitting reduction in counsel fees appropriate after first day of trial-Plaintiffs submitting rates claimed for services of Ms. Devlin, Mr. Champagne proper, and that defendant's comparison with rates in Hull not taking into account latter tending to be lower-Further, although Mr. Champagne called in 1995, qualification as professional engineer, fluency in both official languages enhanced contribution to case-Defendant also objecting to fees paid to Mr. Burrows' firm when plaintiffs represented by previous solicitor-Latter explained as discussions with client before Nelligan Power retained (necessary when plaintiffs' counsel at Beaudry Bertrand receiving judicial appointment)-Research on American case law necessary with regard to developers' profits, American case law being more progressive-Plaintiffs referring to Moreno v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 57 (F.C.T.D.) in which hourly rate of $350 allowed-Premium rate requiring imagination, ingenuity leading to excellent result-Appropriate to reduce hourly rates of counsel for Mr. Burrows from $350 to $300; for Ms. Devlin from $165 to $150; and for Mr. Champagne from $165 to $140-Students and law clerks portion of bill totalling $8,178.10-Defendant submitting, and line of cases to such effect, costs associated with students, law clerks part of overhead, and therefore included with counsel fees-Practice in plaintiff's firm to bill student time separately-On many occasions, more practical, economical to assign portions of work to law clerks, law students, with billing at lower rates, and such fees may properly be costs to client-In these cases, expenses may be permissible on solicitor-client taxation-On consideration of time spent, services provided, claim for students, law clerks appropriate-Disbursements for QuickLaw legal research accepted as claimed.