Truehope Nutritional Support Limited v. Canada (Attorney General)

Truehope Nutritional Support Limited v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-11-13
Neutral citation
2013 FC 1153
File numbers
T-880-03
Decision Content
Date: 20131113
Docket: T-880-03
Citation: 2013 FC 1153
BETWEEN:
TRUEHOPE NUTRITIONAL SUPPORT LIMITED AND DAVID HARDY
Applicants
and
THE ATTORNEY GENERAL OF CANADA AND THE MINISTER OF HEALTH OF CANADA
Respondents
ASSESSMENT OF COSTS – REASONS
Bruce Preston - Assessment Officer
[1] By way of Reasons for Order and Order dated January 20, 2010, the Court dismissed the Application for Judicial Review. Further, by way of an Order Respecting Oral Argument on Costs dated November 19, 2012, the Court awarded costs of the Application to the Respondents and specified that costs were to be assessed in accordance with Column III of Tariff B of the Federal Courts Rules.
[2] On June 6, 2013, the Respondents filed their Revised Bill of Costs and on July 4, 2013, the Respondents filed a Further Bill of Costs which addresses the disbursements related to the assessment of costs. The assessment of costs was heard by way of teleconference on July 11, 2013.
[3] At the commencement of the hearing, counsel for the Respondents submitted that the claims for photocopies for July 24, 2003, July 25, 2003 and April 5, 2004 were being removed from the Bill of Costs as they related to motions for which costs had previously been withdrawn. The Respondents also withdrew the claim for photocopies produced by the Federal Court on January 27, 2009.
[4] Both parties have produced extensive submissions concerning the scale of cost to be used for assessable services. I will address this preliminary issue prior to proceeding with the assessment of assessable services and disbursements.
Scale of Costs
[5] At paragraph 3 of the Respondents Submissions on Costs, counsel submits:
The respondents claim costs at the upper range of Column 3 of the tariff because the hearing of the applicants’ judicial review application, including the hearing of a number of motions, which were directed to be heard and determined at the hearing of the application for judicial review (the “Application”), was inordinately lengthy and complex. This was not a “garden variety” judicial review.
Then, at paragraph 171, counsel submits that a consideration of the factors under Rule 400(3) of the Federal Courts Rules supports an award of costs in the highest range of column III of the table in Tariff B.
[6] In response, at paragraph 7 of the Applicants’ Memorandum on the Quantum of Costs (Applicants’ Memorandum), counsel argues:
It was open to Justice Campbell, on hearing the exact arguments made here, to award costs at the highest range of Column 3. Justice Campbell did not do so. In light of this, and despite the same arguments by the Respondents here, the Applicants submit that the default position for any specific Tariff Item is the mid-point of Column 3, unless there are reasons to vary from the mid-point. To accede to the Respondents’ argument, and award allowable costs at the highest range of Column 3 for all Tariff Items, would in effect usurp Justice Campbell’s specific response to the same arguments (he found “no reason to award costs other than as set out in Column 3 of Tariff B”). This would be akin to making a costs order which is not within the jurisdiction of an Assessment Officer.
In support of this, counsel for the Applicants referred to Eurocopter v Bell Helicopter Textron Canada Limitée, 2012 FC 842, at paragraph 20.
[7] At paragraph 6 of the Respondents’ Reply Submissions, counsel submits:
While Justice Campbell awarded costs under Column III, he did not comment or make any direction with respect to the range within that Column, properly leaving that determination to the Assessment Officer. The Applicants’ argument that the Respondents are not entitled to costs for any item at the top of Column III must fail for these reasons.
[8] Rule 407 of the Federal Courts Rules states:
Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of table to Tariff B.
I find nothing in the wording of Rule 407 which limits the assessment of the assessable services claimed to the mid-point of Column III.
[9] In the final paragraph of the Order Respecting Oral Argument on Costs dated November 19, 2012 (the Costs Order), the Court ordered:
I find that, while the Applicants’ Charter challenge was complex and required a significant amount of time and effort by both sides of the litigation as well as the Court, there is no reason to award costs other than as set out in Column 3 of Tariff B of the Federal Courts Rules, and I so order.
[10] While I agree with counsel for the Applicants that the Order does not specify that the costs are to be allowed at the high end of Column III, I also agree with counsel for the Respondents that the Order does not limit any allowance of costs to the mid-point of Column III.
[11] In Eurocopter (supra), the Court referred to Apotex Inc v Sanofi-Aventis, 2012 FC 318, at paragraph 5, in which the Court held: “According to Rule 407 of the Rules, these costs are typically assessed at the mid-point of Column III of Tariff B, along with certain additional fees and disbursements” (emphasis added). Although the Court held that costs are “typically assessed at the mid-point”, I find that this does not limit me to allowing costs only at the mid-range of Column III as there may be circumstances when the costs claimed are not of a typical nature.
[12] On that point, in Bellemare v Canada (Attorney General), 2004 FCA 231, at paragraph 7, the Federal Court of Appeal held:
Acting pursuant to Rule 405, the assessment officer had no choice but to apply column III of the Tariff B table, as stipulated in Rule 407. In assessing and allowing the costs within the limits set in Rule 407 and pursuant to the judgment rendered in case A-598-99 she could, under Rule 409, consider in allocating the units allowed the factors referred to in Rule 400(3)… (emphasis added).
In stating that an Assessment Officer may consider the factors in Rule 400(3) when allocating the units allowed within the limits of Rule 407, the Court is clearly suggesting that, absent a direction of the Court, an Assessment Officer has jurisdiction to determine the number of units to be allowed, within the range of Column III.
[13] In Starlight v Canada, 2001 FCT 999, at paragraph 7, it was held:
The structure of the Tariff embodies partial indemnity by a listing of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing and synthesizing of issues leaving relatively straightforward issues for trial. Therefore, each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation. If Items are a function of a number of hours, the same unit value need not be allowed for each hour particularly if the characteristics of the hearing vary throughout its duration. In this bill of costs, the lower end of the range for item 5 and the upper end of the range for item 6 are possible results. Some items with limited ranges, such as item 14, required general distinctions between an upper and lower assignment in the range for the service rendered.
[14] Given that the Court has provided no specific direction concerning the range of Column III, I find that, as an Assessment Officer, I am able to determine the number of units to be allocated for each individual assessable service within the full range of Column III, recognizing that typically services are assessed around the mid-point except when circumstances dictate that a specific cost should be assessed at a level below or above the mid-point of Column III.
Assessable Services
[15] Having reached the conclusion above, I will proceed with the assessment of the various Items claimed, taking into consideration the factors listed in Rule 400(3) of the Federal Courts Rules, as necessary.
[16] Concerning Item 2, preparation and filing of all defences, replies, counterclaims or respondents’ records and materials, counsel for the Respondents submits that 7 units is claimed for the preparation of the Respondents’ Record filed October 6, 2009.
[17] At paragraph 10 of the Applicants’ Memorandum, counsel submits that the Applicants take no issue with Item 2 being allowed at the mid-point of Column III.
[18] In preparing their Application Record, the Respondents were required to defend the case presented by the Applicants. I have reviewed the Respondents’ Application Record, Affidavits and Memorandum of Fact and Law and when consideration is given to their preparation and the issues raised by the Applicants which the Respondents had to address, the Respondents’ claim under Item 2 is completely reasonable. Therefore, Item 2 is allowed as claimed at 7 units.
[19] The Respondents have submitted five claims at 7 units each under Item 5, preparation and filing of a contested motion, including materials and responses thereto. These include claims for the Respondents’ Motion for an order striking John and Jane Doe from the Application (Motion Doc. No. 12), the Applicants’ Motion to Admit (Motion Doc. No. 52), the Respondents’ Motion for an order striking the whole or parts of Affidavits filed by the Applicants in support of their Application (Motion Doc. No. 83), the Applicants’ Motion for an order striking various paragraphs from various affidavits filed by the Respondents (Motion Doc. No. 99) and, the Respondents’ Submissions on Costs requested by the Court. I will address each of these motions individually.
[20] Concerning the claim under Item 5 for Motion Doc. No. 12, commencing at paragraph 23 of the Respondents’ Submissions on Costs, counsel argues that on December 12, 2003, the Applicants filed a Discontinuance on behalf of the Applicant Jane Doe and, on March 19, 2004 the Applicants filed a Notice of Motion for an order for leave to file an Amended Notice of Application, abandoning their Judicial Review of the decisions listed in paragraph (b), (d) and (e) of the Notice of Application filed May 28, 2003. Then, at paragraph 34 of the Respondents’ Submissions on Costs, counsel submits:
In effect, the applicants conceded most of the AGC’s 2003 strike motion by filing the Jane Doe discontinuance and by their first motion to amend that discontinued and abandoned the review of the purported decisions listed in (b), (d) and (e) of their Original Application. For these reasons, the AGC seeks costs of its 2003 strike motion pursuant to Rule 402 and 410 of the Federal Courts Rules.
In support of this contention, the Respondents refer to National Steel Car Ltd v Trenton Wood Works Inc, [1996] F.C.J. No. 678 and Milliken & Co. v Interface Flooring Systems (Can) Inc, [1998] F.C.J. No. 541.
[21] Commencing at paragraph 11 of the Applicants’ Memorandum, counsel contends that Rule 401 of the Federal Courts Rules permits the Court to award costs of a motion. Counsel continues by submitting that if no specific order for costs is made on a motion, no costs may be allowed. Then at paragraph 17, counsel argues that the Order of November 4, 2008, concerning Doc. No. 12, is silent as to costs. Concerning Rule 402 and Rule 410, commencing at paragraph 19 of the Applicants’ Memorandum, counsel argues:
19. Rule 402 applies if there is a discontinuance or abandonment. The applicants did not discontinue the Application, nor did they abandon a motion. This Rule does not apply. In addition, when the Application was filed the Applicants believed that all the shipments listed as seized had been seized. Subsequent release of some shipments, and hence the reasonable amendment of the Application to drop them, does not lead to an entitlement to costs under Rule 402 A situation akin to Bayer AG v Apotex, 2010 FC 1133). The Respondents cases are not on point.
20. Rule 410 only applies to an amendment to a pleading “made without leave”. As outlined by the Respondents, a motion to amend was brought and allowed by Justice Campbell with no costs… Rule 410 does not apply because the amendment was made with the leave of the Court and without an order for costs.
[22] At paragraph 22 of the Respondents’ Reply Submissions, counsel refers to paragraphs 23 to 34 of their submissions filed June 7, 2013 and makes no further submissions.
[23] I have reviewed Motion Doc. No. 12 and find that the Applicants’ discontinuance and subsequent Motion to amend their Notice of Application did not completely dispose of the Motion. This is evidenced by the Order of November 4, 2008, which, I have confirmed, relates to the Respondents’ Motion Doc. No. 12. As submitted by the Applicants, the Court’s Order strikes John Doe from the style of cause and is silent as to costs. These being the circumstances, I find that the Respondents are not entitled to their costs of the Motion and that it is not necessary to address the Respondents’ submissions concerning Rule 402 and Rule 410. Therefore, the costs claimed under Item 5 for the Motion Record filed September 2, 2003 are not allowed.
[24] Concerning the Respondents’ claim under Item 5 for Motion Doc. No. 52, the claim relates to the Respondents’ Motion Record filed April 30, 2008, which contains one volume. Commencing at paragraph 40 of the Respondents’ Submissions on Costs, counsel argues that the Applicants applied to amend their Amended Application to add 45 new paragraphs. Counsel for the Respondents also submits that the Motion was set for hearing on May 9, 2008 and then adjourned to be heard November 13 and 14, 2008 in Calgary. Then, at paragraph 45 of the Respondents’ Submissions on Costs, counsel contends:
In addition, Campbell J. directed that the applicants 2008 Motion to Admit would be dealt with as part of the hearing of the judicial review application (i.e. that the admissibility of the 1-800 call notes, Jarvis’ and Brosseau’s testimony as well as the ITO from the prior criminal proceeding would be addressed at a voir dire at the hearing of the application).
In support of this, counsel refers to the Written Directions of the Court dated November 13, 2008. Then at paragraph 176 c. of the Respondents’ Submissions on Costs, counsel contends that the Attorney General is seeking costs as the Motion was directed to be heard as part of the main Judicial Review and the Court’s Reasons dismissed the Applicants Motion.
[25] At paragraph 12 of the Applicants’ Memorandum, counsel submits that if a motion is heard at a judicial review hearing and the order emanating from the judicial review is silent concerning the costs of the motion, there is no order of costs for the motion. In support of this, counsel refers to paragraphs 8 to 11 of Estensen v Canada, 2009 FC 152. Then at paragraph 25 of the Applicants’ Memorandum, counsel contends:
Item B. 5 Motion Record filed April 30, 2008 (Court Doc. 58) in reply to Applicants’ Motion (Court Doc. 52). The Respondents argue … that they are seeking costs for this motion “as it was subsumed within and was directed to be heard as part of the main judicial review application and the Court reasons dismissed the applicants’ Motion to Admit”. The Respondents’ assertion is incorrect, the motion was largely successful. Item 1 in the motion was largely granted at the May 9, 2008, hearing of the motion and an Amended Notice of Application was later filed. Items 2 and 3 were brought out of an abundance of caution and those affidavits were filed (the relief requested). Items 4 and 6 became moot only after the cross examination of Sandra Jarvis (similar testimony to the testimony referred to in Item 4 was given on cross, and the ITO in Item 6 was admitted as an exhibit to the cross of Ms. Jarvis). Item 6 was admitted into evidence by Justice Campbell. Item 3 only became unnecessary after the Respondents conceded they never took safety into consideration. Item 7 was granted at the hearing (the 1-800 crisis line notes were admitted). In any event, there was no costs order for this motion, and so the relative success of the motion is not relevant. Without a costs order there are no costs for motions.
[26] At paragraph 25 of the Respondents’ Reply Submissions on Costs, counsel disagrees with the Applicants’ contention that the Applicants were “largely successful” in their Motion and refers to paragraph 77 of the Respondents’ Submissions on Costs, which suggests:
With respect to the applicants’ 2008 Motion to Admit, the Court found the contents of the “1-800 crisis line notes” irrelevant and refused to admit them for the truth of their contents. With respect to the “in court testimony of Mr. Miles Brosseau…to prove that Health Canada did not consider the health consequences of the April 2003 seizure before making the seizure”, the Court found their motion unnecessary given that the respondents did not contest this fact. In this regard, the Court dismissed the applicants’ 2008 Motion to Admit.
[27] Counsel for the Respondents has submitted that they are seeking costs as the Motion was directed to be heard as part of the main Judicial Review and the Motion was dismissed. In this situation, there must be an Order of the Court specifically awarding costs of the Motion before I am able to assess the costs of the Applicants’ Motion to Admit (Motion Doc. No. 52). On this point, in keeping with the findings in Estensen (supra), I find that the Court did not exercise its discretion to award costs of this Motion, or any other motion, in the Order Respecting Oral Argument on Costs dated November 19, 2012. On page 4 of the Order, the Court states: “As a result, I award costs of the Application to the Respondent” (emphasis added). The Court was very precise in awarding costs of the Application. By specifically mentioning the Application in the award of costs, I find that the Court was limiting the costs award to the costs of the Judicial Review Application and was clearly indicating that no costs were being awarded for the motions heard at the Judicial Review hearing. Therefore, the Respondents’ claim under Item 5 for Motion Doc. No. 52 is not allowed.
[28] The Respondents have claimed 7 units for Motion Records filed September 8, 2009 and October 6, 2009. These Motion Records are related to the Respondents’ and Applicants’ Motions to Strike, Motions Doc. No. 83 and Motion Doc. No. 99 respectively. Pursuant to the Order of May 11, 2009, both of these motions were returnable November 2, 2009 to be heard at the commencement of the Judicial Review. Both parties made extensive submission concerning these motions at the hearing of the Assessment of Costs and in their Written Submissions. Essentially the Applicants submit that there was no order awarding costs of the motions and that the Court would have had to specifically award costs of the motions before they could be assessed. The Respondents argued that this was a complex Judicial Review Application in which the Court directed that the motions be heard at the Judicial Review hearing on November 2, 2009 and that the evidentiary motions became part of the Judicial Review. Counsel for the Respondents contended that the Court was contemplating the entirety of the hearing, including the motions when it awarded costs.
[29] I do not find it necessary to delve extensively into the submissions of the parties concerning the Motions to Strike. Having reviewed the Reasons for Order and Order dated January 20, 2010, I find that, at paragraphs 75 through 85, the Court addresses the parties’ Motions to Strike portions of the affidavit evidence filed. At paragraph 85 the Court concludes: “the evidence found to be irrelevant is inadmissible”. There is no mention of an award of costs in the Court’s disposition of the motions. Given this, my finding at paragraph 25, above, that the Courts award of costs is specific to the Application for Judicial Review, applies equally to these motions. Therefore, in keeping with my decision in paragraph 27, the Respondents’ claim under Item 5 for their Motion Record filed September 8, 2009 and their claim under Item 5 for their Motion Record filed October 6, 2009 are not allowed.
[30] The Respondents have claimed 7 units under Item 5 for the Motion Record filed September 17, 2012, for an order of costs in favour of the Respondents. At paragraph 94 of the Respondents’ Submissions on Costs, counsel contends that the Court “directed that the entitlement issue would be decided by way of a motion in writing”. The Applicants only submission concerning this claim is that there is no order for costs made by the Court.
[31] I have reviewed the Court Record and find that at the Case Management Conference (CMC) of May 22, 2012, the Court directed that the Attorney General of Canada was to forward its “application on the issue of costs via Memorandum of Argument by September 17, 2012”. Although the Court uses the word application in the direction, there is nothing in the direction which indicated that the Respondents were to file a Motion Record. This must have been apparent to the Respondents as, on September 17, 2012, they filed a document titled “Respondents’ Memorandum on Their Entitlement to Costs”, not a Motion Record. Under these circumstances, I find that there is no entitlement to costs under Item 5 as there was no motion. In the alternative, if the Court intended the Respondents’ application on the issue of costs to be considered a motion, the Order Respecting Oral Argument on Costs dated November 19, 2012 does not specifically award costs for any motion on costs. Therefore, the Respondents’ claim under Item 5, relating to the Respondents’ Memorandum on Their Entitlement to Costs, filed September 17, 2012, is not allowed.
[32] The Respondents’ have also submitted a claim under Item 15, preparation and filing of written argument, where requested or permitted by the Court, for the Respondents’ Memorandum on Their Entitlement to Costs. At paragraph 188 of the Respondents’ Costs Submissions, counsel argues that the submissions relate to the Respondents entitlement to costs and whether costs should be decided on the basis of a motion in writing.
[33] In response, Applicants’ counsel contends that Item 15 is under the heading “E. Trial or Hearing” and that it is not for the preparation for a motion. Counsel further submits that this is a duplicate claim as the Respondents have already submitted a claim under Item 5 and that there is no award of costs on the Motion, which would preclude an allowance of costs.
[34] At paragraph 50 of the Respondents’ Reply, counsel submits that the Court directed that the parties file submissions on the entitlement to costs and that in consideration of these materials, the Respondents’ claim is proper and should be allowed.
[35] The Respondents’ claim under Item 5 for the preparation of their Costs Memorandum was disallowed at paragraph 31 above. As previously indicated, the Respondents’ Costs Memorandum was filed on September 17, 2012, further to a Direction of the Court. It has been held that a prerequisite for Item 15 to be allowable is a prior direction of the Court requesting or permitting written submissions (see: League for Human Rights of B'nai Brith Canada v Canada, 2012 FC 234, at paragraph 21). Having found that the Respondents’ claim under Item 5 could not be allowed, I find the Respondents’ claim under Item 15 to be proper as the Memorandum was filed further to the Court’s Direction of May 22, 2012. Concerning the number of units allowable, I find the Respondents’ claim of 7 units to be excessive. Given that the Memorandum concerned the party’s entitlement to costs and not substantive issues before the Court, I find an allowance of 5 units reasonable. Therefore, Item 15 is allowed at 5 units.
[36] The Respondents have claimed 10 units (3.33 Hours x 3 units) under Item 6 for their appearance on a motion held May 9, 2008. This hearing concerned the Applicants’ Motion to admit (Motion Doc. No. 52). In keeping with my decisions at paragraph 27 above, I find that the Respondents are not entitled to any costs on this particular motion. Therefore, the Respondents’ claim under Item 6 is not allowed.
[37] The Respondents have submitted 17 claims under Item 8 and Item 9 respectively, for the preparation and cross-examinations on the affidavits of the various affiants on the Judicial Review. The Respondents have requested 5 units for each claim under Item 8 and 3 units per hour for each claim under Item 9.
[38] The first four claims under each Item relate to the cross-examinations of Sandra Jarvis, Miles Brosseau, Rod Neske and Dennis Shelley, conducted in November and December 2003. At paragraph 24 of the Respondents’ Submissions on Costs, counsel submits that these affidavits were filed in support of their motion to strike (Motion Doc. No. 12). Then at paragraph 51, the Respondents submit that they gave notice that they were going to rely on 7 affidavits on the Judicial Review, including the affidavits of Sandra Jarvis and Rod Neske, mentioned above. At the hearing of the assessment, counsel for the Respondents submitted that the Applicants included the transcripts of the cross-examination of Sandra Jarvis and Rod Neske in their Application Record.
[39] At paragraph 34 of the Applicants’ Memorandum, counsel argue:
The first four preparations claimed…all relate to examinations in 2003, connected to a motion brought by the Respondents…. Because costs were not ordered on this motion, these costs should not be allowed. It is not material that the Applicants filed one of these transcripts in the Judicial Review.
At the hearing of the assessment, counsel for the Applicants submitted that although portions of the transcripts of Sandra Jarvis and Rod Neske were relative to the Judicial Review and were included in the Applicants’ Record, the cross-examination were conducted for the Respondents’ Motion to strike.
[40] Commencing at paragraph 28 of the Respondents’ Reply Submissions on Costs, counsel argues:
i. The AGC submits that the examinations of Sandra Jarvis, Miles Brosseau, Rod Neske and Dennis Shelley were part of the Respondents’ September 2003 Motion to Strike in respect of which costs are sought pursuant to Rules 402 and 410 of the FCR….
ii. Alternatively, costs should be granted for the preparation on the cross-examination on the affidavit of Rod Neske in 2003 as the applicants filed that in their Record on the judicial review. The AGC submits that the applicants should not be allowed to use a transcript on an examination at the hearing of the judicial review to make out their case, but try to hide from the costs associated with it by claiming it was for a prior motion. Such a decision would allow the applicants to gain the benefit of using a transcript without the associated risk and cost.
At the hearing of the assessment, counsel for the Respondents argued that if the costs for the Motion to strike are denied, the cross-examination of Sandra Jarvis and Rod Neske should be allowed as part of the Judicial Review.
[41] The parties are in agreement that these cross-examinations were part of the Respondents’ Motion to Strike (Motion Doc. No. 12). At paragraph 29, above, I found that the Respondents are not entitled to their costs related to the Motion to Strike. In keeping with this decision, the claims under Item 8 and Item 9 for the cross-examinations of Miles Brosseau and Dennis Shelley are not allowed as they only relate to the motion. Concerning the cross-examinations of Sandra Jarvis and Rod Neske, the parties agree that the Respondents relied on the respective affidavits at the Judicial Review and that the transcripts of the 2003 cross-examinations were included in the Applicants’ Record. Contrary to the Respondents’ contention that the Applicants should not be able to avoid the costs by arguing that the cross-examinations were for a prior motion, I find that the claim under Item 8 for the cross-examinations of Sandra Jarvis and Rod Neske should not be allowed. The Respondents have presented no evidence of when they notified the Applicants of their intention to rely on the affidavits of Sandra Jarvis and Rod Neske at the Judicial Review. This being the circumstance, the Applicants would have had no reason to cross-examine the affiants on anything other than the motion. On that point, the Respondents have presented claims for subsequent cross-examinations of Sandra Jarvis and Rod Neske on August 3, 2009 and June 23, 2009 respectively and, at paragraphs 35 and 39 of the Applicants Memorandum, counsel submits that the Applicants do not take any issue with the second examinations as these examinations were to obtain evidence for the hearing of the judicial review, as opposed to the motion.
[42] When viewed in hindsight, it appears that the Respondents should be entitled to Item 8 and Item 9 for the cross-examinations of Sandra Jarvis and Rod Neske held in 2003, because the Applicants included the transcripts in their Application Record. However, it has been decided that an assessment of costs may not be predicated on hindsight (see: Carlile v Canada (Minister of National Revenue), [1997] F.C.J. No. 885, at paragraph 5). Considering this, I find that the fact that the Respondents determined, at a later date, that it was necessary to include the transcript in their Record, is irrelevant. Further, when looked at from this perspective, it is not reasonable to expect the Applicants to reimburse the Respondents for a claim related to a motion for which no costs are allowed. Therefore, for the above reasons, the Respondents’ claims under Item 8 and Item 9, relating to the cross-examinations of Sandra Jarvis and Rod Neske in 2003 are not allowed.
[43] Concerning the remaining claims under Item 8 and Item 9, the next group consists of 11 claims relating to the cross-examinations of Dr. Kaplan, Dr. Popper, Anthony Stephan, David Hardy, Rod Neske, Dr. Vu, Dr. Mueller, Dr. Mithani, Dr. Robin Marles, Sandra Jarvis and Bruce Dale. At paragraph 35 of the Applicants’ Memorandum, counsel submits that the Applicants consented to the eleven claims under Item 8, at the mid-point of Column III. Then at paragraph 39, the Applicants submit:
Adjusting for breaks…the Applicants do not take any issue with the next eleven Item 9 claims….The Applicants consent to these eleven Item 9 claims at one unit per hour. The three units per hour claimed by the Respondents would be excessive for this type of proceeding.
Counsel continues by submitting that lunch breaks and recesses in which counsel are not engaged working on the case are not recoverable under Item 9. In support of this, counsel refers to, Aventis Pharma Inc v Apotex Inc, 2009 FC 51, at paragraphs 32 to 37, Janssen Inc v Teva Canada Limited, 2012 FC 48, at paragraphs 44 and 45, and AstraZeneca AB v Apotex Inc, 2009 FC 822 at paragraph 38. Then, on page 11 of the Applicants’ Memorandum, counsel outlines that for the cross-examinations of Dr. Kapan, Dr. Popper, Mr. Hardy, Mr. Neske, Dr. Vu and Dr. Mueller, the number of hours claimed should be reduced to account for lunches each day.
[44] The Respondents presented no rebuttal concerning Item 8. Having regard to Item 9, at the hearing of the assessment, counsel submitted that, for the attendance at the cross-examinations of the Respondents’ affiants, there would have been a break for lunch. However, for the Applicants’ affiants, counsel argued that they were full working lunches. Then at paragraph 32 of the Respondents’ Reply Submissions, counsel submits:
…The Respondents’ counsel examined 3 of the applicants’ expert witnesses which involved very technical areas and included, in the Kaplan affidavits, a number of studies which required significant and ongoing preparation in order to conduct an effective cross-examination.
Having regard to the number of units claimed under Item 9, counsel for the Respondents argues that the Affidavits of Mr. Hardy and Mr. Stephan were voluminous, dense and contained many contentious issues. Then at paragraph 34 of their Reply Submissions, the Respondents contend:
For these reasons, the AGC respectfully submits that the applicants’ suggestion that 3 units would be “excessive for this type of proceeding” is significantly off base. A review of the nature and content of those affidavits shows that this was a very complex matter.
[45] Concerning Item 8, the Respondents have presented no evidence to justify a claim at the high end of Column III. However, despite the lack of evidence I find that the Respondents would have considerably more preparation for the cross-examination of the Applicants’ affiants than for the Applicants’ cross-examination of the Respondents’ affiants. Under these circumstances and given the nature of the issues addressed in this proceeding, Item 8 is allowed at 4 units for the cross-examinations of Dr. Kaplan, Dr. Popper, Mr. Stephan, Mr. Hardy and Mr. Dales and is allowed at 3 units for the cross-examinations of Mr. Neske, Dr. Vu, Dr. Mueller, Dr. Mithani, Dr. Marles and Ms. Jarvis for a total of 38 units.
[46] Concerning Item 9, having regard to lunch breaks, as the Respondents have conceded that there would have been a break for lunch during the cross-examinations of the Respondents, the amount of time claimed for Mr. Neske, Dr. Vu and Dr. Mueller will be reduced by one hour per day of cross-examination. Having regard to the Applicants’ affiants, although the Respondents have submitted that these would have been full working lunches, I find that there would have been a period of time during each break when counsel would have been eating and performing other functions unrelated to this proceeding. Therefore, for the cross of Dr. Kaplan, Dr. Popper and Mr. Hardy, the amount of time claimed will be reduced by 30 minutes per day of cross-examination. As the cross-examinations of Mr. Stephan, Dr. Mithani, Dr. Marles, Ms. Jarvis and Mr. Dales did not extend over lunch, the amounts claimed have not been adjusted.
[47] Concerning the number of units claimed per hour under Item 9, the Applicants have provided no explanation or evidence as to why 3 units per hour are excessive. On the other hand, the Respondents have provided no evidence or explanation why the cross-examinations of the Respondents’ affiants should be allowed at the high end of Column III and only scant comments concerning the affidavits of Dr. Kaplan, Mr. Hardy and Mr. Stephan for the Applicants. Given these circumstances and the nature of the issues addressed in this proceeding, I will allow the claims for the cross-examinations of Dr. Kaplan, Dr. Popper, Mr. Stephan, Mr. Hardy, Mr. Neske, Dr. Vu, Dr. Mueller, Dr. Mithani, Dr. Marles, Ms. Jarvis and Mr. Dale at 2 units per hour for the number of hours as adjusted in paragraph 46 above. Therefore, Item 9 for the above mentioned individuals is allowed for a total of 108 units.
[48] The next claims under Item 8 and Item 9 concern the cross examination of Dr. Silverstone. Having reviewed the material submitted by the parties, I find it necessary to consider all of the fees and disbursements related to Dr. Silverstone together. For this reason, I will consider the Respondents’ claims under Item 8 and Item 9, concerning the cross examination of Dr. Silverstone, in conjunction with my consideration of the fees claimed for his services.
[49] The final claims under Item 8 and Item 9 relate to the cross-examination of Ms. Kim Seeling. At paragraphs 37 and 43 of the Applicants’ Memorandum, counsel submits that these claims should not be allowed as Ms. Seeling was called as a witness, at the direction of the Court, at the Judicial Review hearing on November 27, 2009. Counsel argues that these claims are duplicates to the Respondents’ claims under Item 13(b) and Item 14(a) for preparation and attendance at the hearing.
[50] At paragraph 30 of the Respondents’ Reply Submissions, counsel argues that the attendance and cross-examination of Ms. Seeling on the last day of the Judicial Review hearing was directed by the Court. Counsel argues that this is not a duplicate claim as counsel was required to prepare the witness and arrange for the delivery of the seized materials.
[51] I have reviewed the Court Record and confirmed that on November 27, 2009 Ms. Seeling was called as a witness at the judicial review hearing. This being the circumstance, any preparation and attendance relating to the witness are accounted for under Item 13(b) and Item 14(a). As the Respondents have submitted claims under Item 13(b) and Item 14(a), the examination of Ms. Seeling will be considered when assessing those costs. Therefore, the Respondents’ claims under Item 8 and Item 9 for the cross-examination of Ms. Seeling are not allowed.
[52] The Respondents have submitted 32 claims, at 6 units each, under Item 10 for preparation for Case Management Conferences (CMCs).
[53] At paragraph 44 of the Applicants’ Memorandum, counsel submits:
This case needs to clarify whether what we call Case Management Conferences (“CMCs”) when a Judicial Review is specially managed under Rule 383, are meant to be Pre-Hearing Conferences under Rule 315 (which incorporate Rules 258 to 267). Item 10 simply uses the word “conference” under the heading “D. Pre-Trial and Pre-Hearing Procedures”.
[54] Then at paragraphs 46 and 47, the Applicants argue:
46. In Canadian Private Copying Collective v Fuzion Technology Corp., 2010 FC 626 at [10-11]…,Items 10 and 11 were disallowed for a conference because the matter was a judicial review and Items 10 and 11 are under sub-paragraph D (Pre-Trial and Pre-Hearing Procedures) which rely on Rule 258 in an action. This decision does not mean that such procedures cannot apply to a judicial review in a Rule 315 order is made. It does stand for the proposition that not every non-motion “conference” is covered by Items 10 and 11.
47. Rule 258 conferences mandate specific preparation akin to a motion, and Item 10 permits units in amounts similar to contested motions. CMCs held in specially managed proceedings have none of the requirements under Rules 258-267 (unless specifically directed by the CMC Judge). In this case there were no Rule 315 orders to impose duties under Rules 258-267 for any of the 32 CMCs. As in this case, many CMCs in specially managed proceedings require no or little preparation and can be mere scheduling sessions.
[55] And at paragraph 49, the Applicants submit:
There are cases where pre-hearings, even ones resulting in orders, have not been held to be Rule 315 pre-hearing conferences recoverable under Items 10 an 11 (see for example Martselos v Poitras, 2009 FC 957 at [3]…. However, it is not clear where the dividing line, if any, is between Rule 315 pre-hearing conferences for which Items 10 and 11 clearly apply, and CMCs in specially managed proceedings in which no legal argument is made, no memorandums are filed, and most of which simply involve scheduling and reporting on progress to keep the file moving along.
[56] The Applicants also submit that if all 32 CMCs are allowed, it could have the effect of deterring the use of CMCs in specially managed cases because the potential costs are prohibitive. Counsel further argues that the Respondents have provided no evidence that they actually spent time preparing for the CMCs and that there are 11 of the CMCs, listed in paragraph 52 of the Applicants’ Memorandum which would be more properly classified as preparation for motions and are not recoverable without a costs order.
[57] Commencing at paragraph 37 of the Respondents’ Reply Submissions, counsel submits that the Applicants consented to having the Judicial Review case managed and that the Case Management Conferences were reasonable and necessary given the nature of the