dTechs EPM Ltd. v. British Columbia Hydro and Power Authority

dTechs EPM Ltd. v. British Columbia Hydro and Power Authority
Court (s) Database
Federal Court Decisions
Date
2023-10-31
Neutral citation
2023 FC 1446
File numbers
T-227-17
Decision Content
Date: 20231031
Docket: T-227-17
Citation: 2023 FC 1446
BETWEEN:
DTECHS EPM LTD.
Plaintiff/ Defendant by Counterclaim
and
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC.
Defendants/ Plaintiffs by Counterclaim
PUBLIC REASONS FOR ASSESSMENT
(The parties were canvassed about redactions for my Confidential Reasons for Assessment
issued on May 11, 2022, and I was advised on October 27, 2023, that no redactions are required.)
GARNET MORGAN, Assessment Officer
I. Background [1] This is an assessment of costs pursuant to multiple decisions of the Federal Court, wherein costs were awarded to British Columbia Hydro and Power Authority (hereafter BC Hydro), in relation to the Plaintiff’s action proceeding and various motions on this file.
[2] Concerning the action proceeding, the Court’s Order and Reasons dated April 22, 2021, states the following regarding the Court’s award of costs at the Order portion of the decision:
1. The costs, including disbursements, payable to the Defendant British Columbia Hydro and Power Authority by the Plaintiff dTechs epm Ltd shall be assessed in accordance with the high end of Column IV of Tariff B of the Federal Courts Rules, SOR/98-106 [Rules]. Costs shall be calculated at double the Tariff rate (but not double disbursements) from October 30, 2020 to March 1, 2021.
2. The costs, including disbursements, payable to the Defendant Awesense Wireless Inc by the Plaintiff dTechs epm Ltd shall be assessed in accordance with the high end of Column IV of Tariff B of the Rules. Costs shall be calculated at double the Tariff rate (but not double disbursements) from April 24, 2020 to March 1, 2021.
3. If the parties are unable to agree upon the costs, including disbursements, payable pursuant to this Order, then the matter will be referred to an assessment officer for determination.
4. Post-judgment interest shall be calculated on a simple basis at a rate of 2.5% per annum from the date of this Order.
[3] In addition, at paragraphs 48 and 49 of the Court’s Order and Reasons dated April 22, 2021, it states the following regarding costs at the Reasons portion of the decision:
48. BC Hydro and Awesense are each entitled costs, including reasonable disbursements, in accordance with the high end of Column IV of Tariff B of the Rules. The assessment of costs will include a doubling of Tariff values, but not disbursements, after the dates of the Defendants’ respective settlement offers. Post-judgment interest will be calculated on a simple basis at a rate of 2.5% per annum.
49. If the parties are unable to agree upon the costs, including disbursements, payable pursuant to this Order and Reasons, then the matter will be referred to an assessment officer for determination.
[4] Subsequent to the Court’s Order and Reasons being issued to the parties on April 22, 2021, the co-Defendants (British Columbia Hydro and Power Authority and Awesense Wireless Inc.) filed a motion pursuant to Rule 403 of the Federal Courts Rules, SOR/98-106 (FCR), for directions to be given to the Assessment Officer respecting second counsel and travel fees. The Court issued an Order on June 23, 2021, wherein the following directions were provided to the Assessment Officer assessing the costs for this file:
1. The assessment officer is directed to award to BC Hydro reasonable fees for second counsel under items 2, 3, 5, 7-11, 13(a), 13(b), 14(b), 15, and 24-27 of Tariff B of the Rules.
2. The assessment officer is directed to award to BC Hydro reasonable costs for travel by counsel under item 24 of Tariff B of the Rules.
3. The assessment officer is directed to award to Awesense reasonable fees for second counsel under items 2-4, 7, 8, 10-12, 13(a), 13(b), 14(b), 15 and 26 of Tariff B of the Rules.
4. The assessment officer is directed to award to Awesense reasonable costs for travel by counsel under item 24 of Tariff B of the Rules.
5. Costs of this motion are awarded to BC Hydro.
[5] As noted earlier in these Reasons, this assessment of costs is also pursuant to multiple Court decisions related to various motions on this file. These motions are discussed in detail later in these Reasons under Item 5 in the Assessable Services section.
[6] Further to the issuance of the aforementioned Court decisions, on July 21, 2021, BC Hydro filed a Bill of Costs, which initiated BC Hydro’s request for an assessment of costs.
[7] On July 25, 2021, and January 31, 2022, directions were issued to the parties regarding the conduct and filing of additional documents for the assessment of costs. The court record shows that the following documents were filed by the parties for this assessment of costs: on August 27, 2021, BC Hydro filed a 2 volume record entitled Costs Submissions of BC Hydro, which included Written Representations and an Affidavit of Susan Burkhardt, sworn on August 27, 2021; on January 31, 2022, the Plaintiff filed a record entitled Reply to Costs Submissions of BC Hydro and Awesense, which included Written Representations; and on February 22, 2022, BC Hydro filed a record entitled Reply Submissions of BC Hydro, which included Reply Submissions and an Affidavit of Chirani Mudunkotuwa, sworn on February 22, 2022.
[8] BC Hydro’s Bill of Costs attached as Exhibit “B” to the Affidavit of Susan Burkhardt, sworn on August 27, 2021, will be reviewed for this assessment of costs.
II. Assessable Services [9] BC Hydro has claimed $365,827.48 for assessable services, inclusive of taxes.
A. Item 3 – Amendment of document, where the amendment is necessitated by a new or amended originating document, pleading, notice or affidavit of another party; Item 12 – Notice to admit facts or admission of facts; notice for production at hearing at hearing or trial or reply thereto; Item 14 – Counsel fee: (a) to first counsel, per hour in Court; and (b) to second counsel, where Court directs, 50% of the amount calculated under paragraph (a); Item 15 – Preparation and filing of written argument, where requested or permitted by the Court; Item 24 – Travel by counsel to attend a trial, hearing, motion, examination or analogous procedure, at the discretion of the Court; Item 25 - Services after judgment not otherwise specified; Item 26 – Assessment of costs; Item 27 – Such other services as may be allowed by the assessment officer or ordered by the Court. [10] I have reviewed the parties’ costs documents in conjunction with the court record, the FCR and any relevant jurisprudence and I have determined that BC Hydro’s claims submitted under Items 3, 12, 14, 15, 24, 25, 26 and 27 are reasonable and can be allowed as claimed. The remaining claims under Items 2, 5, 7, 8, 9, 10, 11 and 13 have some issues to look into and as a result, they will be individually reviewed further below in these Reasons.
[11] Concerning my assessment of the claims for Items 3, 12, 14, 15, 24, 25, 26 and 27, I reviewed the factors in awarding costs that are listed under Rule 400(3) of the FCR, which I am able to consider in an assessment of costs pursuant to Rule 409 of the FCR. When I considered factors such as; (a) the result of the proceeding; (c) the importance and complexity of issues; and (g) the amount of work performed by BC Hydro; the court record reflects that BC Hydro was a successful party in the action proceeding and was awarded costs at the high-end of Column IV of Tariff B of the FCR; that the issues argued were of significant importance and of moderate to high complexity; and that a substantial amount of work was done by BC Hydro for Items 3, 12, 14, 15, 26 and 27. In addition, the Plaintiff did not provide any specific submissions regarding any issues pertaining to the aforementioned Items. In Dahl v Canada, 2007 FC 192, at paragraph 2, the Assessment Officer stated the following regarding the absence of relevant representations for assessments of costs:
2. Effectively, the absence of any relevant representations by the Plaintiff, which could assist me in identifying issues and making a decision, leaves the bill of costs unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of the judgment and the Tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. Certain items warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs.
[12] In addition to the Dahl decision, in Carlile v Canada, [1997] F.C.J. No. 885, at paragraph 26, the Assessment Officer stated the following regarding having limited material for assessments of costs:
26. […] Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. This presumes a subjective role for the Taxing Officer in the process of taxation. My Reasons dated November 2, 1994, in T-1422-90: Youssef Hanna Dableh v. Ontario Hydro cite, [1994] F.C.J. No. 1810, at page 4, a series of Reasons for Taxation shaping the approach to taxation of costs. Dableh was appealed but the appeal was dismissed with Reasons by the Associate Chief Justice dated April 7, 1995, [1995] F.C.J. No. 551. I have considered disbursements in these Bills of Costs in a manner consistent with these various decisions. Further, Phipson On Evidence, Fourteenth Edition (London: Sweet & Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars as the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donations of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd.
[…]
[13] I have utilized the Dahl and Carlile decisions as guidelines, and although there is an absence of specific submissions from the Plaintiff regarding BC Hydro’s claims for Items 3, 12, 14, 15, 24, 25, 26 and 27, as an Assessment Officer, I still have an obligation to ensure that any claims that are allowed are not “unnecessary or unreasonable”. This being noted, I have reviewed BC Hydro’s Bill of Costs in conjunction with the court record, the FCR and any relevant jurisprudence to ensure that the claims were necessary and are reasonable and I have found that BC Hydro has met these requirements for the claims submitted under Items 3, 12, 14, 15, 24, 25, 26 and 27. Therefore, these claims will be allowed as claimed in BC Hydro’s Bill of Costs.
[14] Concerning the quantum of costs for BC Hydro’s claims submitted under Items 3, 25 26 and 27, the Item allowances are as follows: for Item 3, 7 units are allowed for first counsel’s services and 3.5 units are allowed for second counsel’s services, for a total of 10.5 units, which is a total dollar amount of $1,764.00, inclusive of taxes. For Item 25, 1 unit is allowed for first counsel’s services and a 0.5 unit is allowed for second counsel’s services, for a total of 1.5 units, which is a total dollar amount of $252.00, inclusive of taxes. For Item 26, 7 units are allowed for first counsel’s services and 3.5 units are allowed for second counsel’s services, for a total of 10.5 units, which is a total dollar amount of $1,764.00, inclusive of taxes. For Item 27, 4 units are allowed for first counsel’s services and 2 units are allowed for second counsel’s services, for a total of 6 units, which is a total dollar amount of $1008.00, inclusive of taxes.
[15] Concerning the quantum of costs for BC Hydro’s claims submitted under Items 12, 14, 15 and 24, the Court’s Order and Reasons dated April 22, 2021, ordered that BC Hydro’s “[c]osts shall be calculated at double the Tariff rate (but not double disbursements) from October 30, 2020 to March 1, 2021.” For Items 12 and 24, there are 2 claims for each Item that fall within the timeframe for the doubling of costs, and for Items 14 and 15, all of the claims submitted fall within the timeframe for the doubling of costs. Specifically, the Item allowances are as follows: for Item 12, 20 units are allowed for first counsel’s services, with 8 units being doubled, for a total of 28 units, which is a total dollar amount of $4,704.00, inclusive of taxes. For Item 14(a), 266 units are allowed for first counsel’s services. All of these units are doubled for a total of 532 units, which is a total dollar amount of $89,376.00, inclusive of taxes. For Item 14(b), 133 units are allowed for second counsel’s services. All of these units are doubled for a total of 266 units, which is a total dollar amount of $44,688.00, inclusive of taxes. For Item 15, 9 units are allowed for first counsel’s services. All of these units are doubled for a total of 18 units, which is a total dollar amount of $3,024.00, inclusive of taxes. Also for Item 15, 4.5 units are allowed for second counsel’s services. All of these units are doubled, for a total of 9 units, which is a total dollar amount of $1,512.00, inclusive of taxes. For Item 24, 28 units are allowed for first counsel’s travel fees, with 7 units being doubled, for a total of 35 units, which is a total dollar amount of $5,880.00, inclusive of taxes. Also for Item 24, 10.5 units are allowed for second counsel’s travel fees, with 3.5 units being doubled, for a total of 14 units, which is a total dollar amount of $2,352.00, inclusive of taxes.
[16] The total dollar amount allowed for BC Hydro’s claims submitted under Items 3, 12, 14, 15, 24, 25, 26 and 27 is $156,324.00, inclusive of taxes.
B. Item 2 - Preparation and filing of all defences, replies, counterclaims or respondents’ records and materials. [17] BC Hydro has submitted multiple claims under Item 2 in relation to the preparation and filing of BC Hydro’s Demand for Particulars, Statement of Defence and Counterclaim, and the Reply to Defence to Counterclaim. In the following decisions: Flag Connection Inc. v Canada, 2006 FC 10, at paragraph 9; Abbott Laboratories Ltd. v Canada, 2009 FC 399, at paragraph 10 (Abbott #1); and in Toronto Sun Wah Trading Inc. v Canada, 2009 FC 1037, at paragraph 3, the issue of multiple claims submitted under Item 2 was addressed and it was determined that the use of the word all (emphasis added) in Item 2 only allows a party to submit one claim for all of the documents prepared and filed under Item 2. Utilizing the aforementioned decisions as guidelines, I find that BC Hydro’s separate claims for the Demand for Particulars, the Statement of Defence and Counterclaim, and the Reply to Defence to Counterclaim should be subsumed under a singular claim for Item 2. Further to my review of the parties’ costs documents, the court record, the FCR and the aforementioned jurisprudence, I have determined that it is reasonable to allow 9 units for first counsel’s services and 4.5 units for second counsel’s services for Item 2, for a total of 13.5 units, which is a total dollar amount of $2,268.00, inclusive of taxes.
C. Item 5 – Preparation and filing of a contested motion, including materials and responses thereto.
[18] BC Hydro has submitted multiple claims under Item 5 for the preparation and filing of documents related to the following motions: BC Hydro’s bifurcation motion filed on April 6, 2018; BC Hydro’s motion for security for costs filed on April 16, 2020; BC Hydro’s motion to serve and file a Fourth Amended Statement of Defence and Counterclaim filed on November 4, 2020; BC Hydro’s motion for leave pursuant to Rule 285 of the FCR to adduce at trial the Affidavit of Michele Marzola filed on November 6, 2020; and BC Hydro’s motion pursuant to Rule 403 of the FCR for directions to be given to the Assessment Officer respecting the assessment of BC Hydro’s costs filed on May 25, 2021.
[19] At paragraphs 8 to 12 of the Plaintiff’s Written Representations it is acknowledged that the Plaintiff opposed BC Hydro’s motion for security for costs and agreed to costs resulting from that motion. The Plaintiff also submitted that BC Hydro’s remaining motions were not opposed and that “[t]he motions were in essence resolved by consent, and so no units should be assessed for motions.” In support of this argument, the Plaintiff cited the decision: Dableh v Ontario Hydro, [1998] F.C.J. No. 491. In reply, at paragraphs 5 to 11 of BC Hydro’s Reply Submissions it is submitted that the Plaintiff initially contested all of BC Hydro’s motions before any of them were consented to by the Plaintiff. BC Hydro submitted that a motion on consent does not necessarily negate an award of costs, and noted that BC Hydro’s bifurcation motion had an award of costs of $1,200.00, even though the Plaintiff had consented to this motion. BC Hydro also noted that Item 4 of Tariff B of the FCR is designated for uncontested motions, indicating that costs are not only recoverable for contested motions.
[20] Further to my review of the parties’ submissions, I am in agreement with BC Hydro that costs may be recoverable for motions that have been consented to depending on the facts pertaining to a particular motion and this is supported by the Dableh decision that was cited by the Plaintiff. The Dableh decision discusses the nuances with motions that may have been contested to initially but then are consented to and whether Item 4 (for uncontested motions) or Item 5 (for contested motions) should be used in Tariff B and the number of units that may apply. My review of Dableh did not reveal that an assessment of costs is not permitted for motions that have been consented to. This being noted, my review of the court record did not reveal that there are Court decisions awarding costs to BC Hydro for all of the motions that have been submitted under Item 5. In Canada v Uzoni, 2006 FCA 344, at paragraph 4, the Assessment Officer stated the following regarding Court decisions being silent with respect to costs:
4. […] It is a well established principle that costs are at the respective Court's discretion and where an order is silent with respect to costs, it implies there is no visible exercise of the respective Court's discretion under Rule 400(1). Reference may also be made to a relevant passage in Mark M. Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, paragraph 105.7:
... Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at a trial with no mention of costs, it is as though the judge had said that he "saw fit to make no order as to costs"...
Similarly, I rely on Kibale v. Canada (Secretary of State), [1991] F.C.J. No. 15, [1991] 2 F.C. D-9 which reflects the same sentiment:
If an order is silent as to costs, no costs are awarded.
[21] The Uzoni decision indicates that a Court decision must explicitly award costs to a party for costs to be assessed. This decision is supported by a recent decision of the Court in Tursunbayev v Canada, 2019 FC 457, at paragraph 39, wherein the Court discusses the issue of decisions that are silent on costs. My review of BC Hydro’s claims submitted under Item 5 found that for BC Hydro’s bifurcation motion, that the Court’s Order dated May 8, 2018, awarded costs of $1,200.00, inclusive of disbursements and taxes to BC Hydro. Therefore, the costs for this motion has already been assessed by the Court.
[22] Concerning BC Hydro’s motion for security for costs, the Court’s Order dated May 8, 2020, awarded costs to BC Hydro. On May 8, 2020, BC Hydro sent a letter to the Court advising that the parties had settled the costs for the motion for security for costs at $6,606.68, “payable in any event of the cause.” Therefore, this motion does not require an assessment of costs, as the parties have agreed to the costs for this motion.
[23] Concerning BC Hydro’s motion to serve and file a Fourth Amended Statement of Defence and Counterclaim, on November 6, 2020, the Plaintiff sent a letter to the Court advising that the Plaintiff consented BC Hydro’s motion. Subsequently, in a letter dated November 9, 2020, BC Hydro advised the Court that the parties had not settled the issue of costs and proposed that the issue be discussed at a trial management conference (TMC) scheduled for November 10, 2020. The court record shows that at the TMC, the issue of costs was deferred to the trial scheduled to begin on November 16, 2020. My review of the Court’s decisions dated March 1, 2021, March 16, 2021, April 22, 2021, and June 23, 2021, which were issued subsequent to the trial, did not reveal that costs were specifically awarded to any party in relation to BC Hydro’s motion to serve and file a Fourth Amended Statement of Defence and Counterclaim. Therefore, costs cannot be assessed for this motion.
[24] Concerning BC Hydro’s motion for leave pursuant to Rule 285 of the FCR to adduce at trial the Affidavit of Michele Marzola, the court record shows that at the TMC held on November 10, 2020, that this motion was deferred to the trial scheduled to begin on November 16, 2020. My review of the Court’s decisions dated March 1, 2021, March 16, 2021, April 22, 2021, and June 23, 2021, which were issued subsequent to the trial, did not reveal that costs were specifically awarded to any party in relation to BC Hydro’s motion for leave pursuant to Rule 285 of the FCR to adduce at trial the Affidavit of Michele Marzola. Therefore, costs cannot be assessed for this motion.
[25] Concerning BC Hydro’s motion pursuant to Rule 403 of the FCR for directions to be given to the Assessment Officer respecting the assessment of BC Hydro’s costs, the Court’s Order dated June 23, 2021, awarded costs to BC Hydro. Therefore, costs will be assessed for this motion.
[26] Utilizing the Uzoni and Tursunbayev decisions as guidelines, I find that the only motion claimed by BC Hydro which requires an assessment of costs is the Rule 403 motion for directions to be given to the Assessment Officer respecting the assessment of BC Hydro’s costs. The bifurcation motion had costs fixed by the Court at $1,200.00, and the parties consented to costs at $6,606.68 for BC Hydro’s motion for security for costs. The remaining motions for BC Hydro to serve and file a Fourth Amended Statement of Defence and Counterclaim, and for leave pursuant to Rule 285 of the FCR to adduce at trial the Affidavit of Michele Marzola, do not have corresponding Court decisions awarding costs for these motions nor has BC Hydro provided evidence that the Plaintiff consented to pay the costs for these motions, therefore I have determined that the costs claimed for these motions must be disallowed.
[27] With regards to BC Hydro’s Rule 403 motion for directions to be given the Assessment Officer respecting the assessment of BC Hydro’s costs, further to my review of the parties’ submissions in conjunction with the court record, I have determined that it is reasonable to allow 9 units for first counsel’s services and 4.5 units for second counsel’s services for Item 5, for a total of 13.5 units, which is a total dollar amount of $2,268.00, inclusive of taxes.
[28] Lastly, with regards to the taxes, the Court’s Order dated May 8, 2018, awarded costs of $1,200.00, inclusive of disbursements and taxes (emphasis added) and it is unclear from the costs documents filed if the consented to amount of $6,606.68 for the bifurcation motion includes any taxes, as a result these two amounts will be excluded from my tax calculation for Item 5. Therefore, the total dollar amount allowed for BC Hydro’s claims submitted under Item 5 is $10,074.68, inclusive of taxes.
D. Item 7 – Discovery of documents, including listing, affidavit and inspection; Item 8 – Preparation for an examination, including examinations for discovery, on affidavits, and in aid of execution; and Item 9 – Attending on examinations, per hour.
[29] BC Hydro has submitted multiple claims under Items 7, 8 and 9 in relation to the discovery of documents, and the preparation for, and attendance at examinations for discovery. At paragraphs 23 and 24 of BC Hydro’s Written Representations, it is submitted that BC Hydro “is only claiming one set of costs for the listing, affidavit and inspection (as the case may be) with respect to each of the three parties’ documents” and that the oral discoveries took approximately 6 days in total. In response, at paragraphs 13 and 14 of the Plaintiff’s Written Representations it is submitted that no costs should be assessed for BC Hydro’s claims for the discovery of documents and oral discovery in relation to the co-Defendant, Awesense Wireless Inc., “[a]s there were no issues raised between the defendants themselves”. In reply, at paragraph 12 of BC Hydro’s Reply Submissions it is submitted that:
12. With respect to paragraphs 13 and 14 of dTechs’ submissions, while the Defendants did not raise issues against one another, dTechs did raise the issue of infringement by common design, and alleged that the Defendants acted together to infringe dTechs’ now-invalid patent. dTechs’ accusation required that the Defendants inspect each other’s productions of documents and attend oral discovery of each Defendant’s representative in order to fully and informatively defend against dTechs’ infringement claim.
[30] Further to the parties’ submissions, Rule 222 of the FCR provides the following definition of a document, which is found in the Discovery and Inspection section of Part 4 of the FCR:
Definition of document
222.(1) In rules 223 to 232 and 295, document includes an audio recording, a video recording, a film, a photograph, a chart, a graph, a map, a plan, a survey and a book of account, as well as data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device.
Interpretation
(2) For the purposes of rules 223 to 232 and 295, a document of a party is relevant if the party intends to rely on it or if the document tends to adversely affect the party’s case or to support another party’s case.
[31] My review of the rules governing the discovery and inspection of documents, found at Rules 222 to 233, and my review of Part 11 of FCR, and also my review of Items 7, 8 and 9 contained in Tariff B, did not reveal that a Defendant’s claims for the discovery of documents or for oral discovery in relation to the co-Defendant’s case are restricted if the Defendants did not raise any issues against one another. My review of the definition found at Rule 222 indicates that a party’s interest in another party’s documents is not limited to only documents that could adversely affect a party’s case but also includes documents that could support a party’s case, or could support another party’s case. With regards to examinations, in Enterprise Rent-A-Car Co. v Singer, [1994] F.C.J. No 1356, the Court ordered that the co-Defendants in that particular case should be excluded from attending the examination of another co-Defendant, and stated the following at paragraphs 12 and 13 of the decision:
12. I am satisfied that the applicant has met the onus of satisfying me that justice will be better served if the personal defendants are excluded; if not better served, in the least better protected in the circumstances of this case. The possibility of injustice for failure to exclude is more remote and has the potential of being more substantial to the plaintiffs; on the facts I am satisfied that there is sufficient basis for apprehension.
13. As in Rogers, supra, the exclusion, as far as one can be practical, will reduce the risk that the evidence of one will have on the other. It should also be emphasized that they are both being represented by the same counsel which also assures a further measure of protection and safeguard. In this particular case "I consider that the ends of justice will be best served by an order for exclusion."
[32] My review of the Enterprise Rent-A-Car Co. decision indicates that co-Defendants may attend the examination of a co-Defendant, unless the Court decides otherwise. My review of the court record for this particular file did not reveal that there are any Court decisions excluding the co-Defendants from attending the examinations for discovery of another co-Defendant. In addition, the Court’s decisions dated April 22, 2021 and June 23, 2021, did not specify that costs should not be assessed for a co-Defendant’s claims related to the discovery of documents or the attendance at an examination for discovery in relation to another co-Defendant. Therefore, in the absence of any jurisprudence from the Plaintiff to support their position, I find that BC Hydro’s claims for Items 7, 8 and 9 have been submitted in accordance with the FCR and are supported by BC Hydro’s costs documentation and the court record. I have reviewed BC Hydro’s claims submitted under Items 7, 8 and 9, and in the absence of any specific objections from the Plaintiff for any of the remaining claims that were submitted by BC Hydro, and having considered that BC Hydro is entitled to submit claims for Items 7, 8 and 9 at the high-end of column IV and is also entitled to claim second counsel fees, I have determined that it is reasonable to allow BC Hydro’s claims for Items 7, 8 and 9, as they have been submitted.
[33] Concerning the quantum of costs for BC Hydro’s claims submitted under Items 7, 8 and 9, the Item allowances are as follows: for Item 7, 27 units are allowed for first counsel’s services, which is a total dollar amount of $4,536.00, inclusive of taxes, and 13.5 units are allowed for second counsel’s services, which is a total dollar amount of $2,268.00, inclusive of taxes. For Item 8, 56 units are allowed for first counsel’s services, which is a total dollar amount of $9,408.00, inclusive of taxes, and 24 units are allowed for second counsel’s services, which is a total dollar amount of $4,032.00, inclusive of taxes. For Item 9, 150 units are allowed for first counsel’s services, which is a total dollar amount of $25,200.00, inclusive of taxes, and 72.2 units are allowed for second counsel’s services, which is a total dollar amount of $12,129.60, inclusive of taxes.
[34] The total dollar amount allowed for BC Hydro’s claims submitted under Items 7, 8 and 9 is $57,573.60, inclusive of taxes.
E. Item 10 – Preparation for conference, including memorandum; Item 11 – Attendance at conference, per hour.
[35] BC Hydro has submitted multiple claims under Items 10 and 11 in relation to the preparation for, and the attendance at case management, pre-trial, and trial management conferences. At paragraph 15 of the Plaintiff’s Written Representations it is submitted that BC Hydro’s claims, “for costs for preparation is double that for the attendances” and that “preparation costs ought not to exceed attendance costs.” At paragraphs 13 and 14 of BC Hydro’s Reply Submissions it is submitted that:
13. With respect to paragraph 15, dTechs provides no legal or factual support for its bald assertion that preparation costs for court conferences ought not to exceed attendance costs.
14. While attendance costs are to compensate for the time spent attending the conferences, preparation costs are to compensate for the time spent preparing. Preparation time very often exceeds attendance time (e.g., preparing for trial of this action took years (from 2017 to 2020), whereas the actual trial only took days (10 days of hearing between November 16 and December 4, 2020)).
[36] Further to my review of the parties’ submissions, I am in agreement with BC Hydro that the Plaintiff did not provide any legal or factual support for the argument that the preparation costs should not exceed the attendance costs that have been claimed under Items 10 and 11. I did a review of the costs jurisprudence and I did not find any decisions that made the correlation that preparation costs should not exceed the attendance costs as a general guideline. Further to my review of the Court’s Order and Reasons dated April 22, 2021, I find that BC Hydro’s claims for Item 10 were submitted in accordance with the Court’s decision and the FCR. There may be some nuances as to whether or not an individual claim made under Item 10 should have been claimed at 7 or 8 units, but the Plaintiff did not provide any submissions regarding any individual claims being particularly excessive in the number of units claimed. Utilizing the Dahl and Carlile decisions (supra) as guidelines, I have reviewed BC Hydro’s Bill of Costs in conjunction with the court record and the FCR to ensure that any costs that are allowed were necessary and are reasonable and I have confirmed that all of the claims submitted under Items 10 and 11, with the exception of the CMC held on May 8, 2018, have met these requirements.
[37] Concerning BC Hydro’s claims for Items 10 and 11 for the CMC held on May 8, 2018, the court record shows that the Court Registrar documented the hearing as only having one counsel present for BC Hydro in the court registry’s electronic database. The Court Registrar, who was present for the hearing, also attended other hearings for this file and documented other hearings as having either one counsel or multiple counsel in attendance for BC Hydro, therefore this entry does not appear to have a clerical oversight. In addition, I reviewed the Affidavit of Susan Burkhardt, sworn on August 27, 2021, and at Exhibit “A”, the invoice dated June 19, 2018, does not explicitly state that multiple counsel were present for the CMC held on May 8, 2018. Therefore, further to my review of the court record and BC Hydro’s costs documentation, I have determined that it is reasonable to allow the first and second counsel fees for Item 10 for the preparation for CMC held on May 8, 2018, and that it is reasonable to only allow first counsel fees for Item 11, for the attendance at this CMC.
[38] Concerning the quantum of costs for BC Hydro’s claims submitted under Items 10 and 11, further to the Court’s Order and Reasons dated April 22, 2021, there are 2 claims under each Item that fall within the timeframe for the doubling of costs. Specifically, the Item allowances are as follows: for Item 10, 64 units are allowed for first counsel’s services, with 8 units being doubled, for a total of 72 units, which is a total dollar amount of $12,096.00, inclusive of taxes. Also for Item 10, 32 units are allowed for second counsel’s services, with 4 units being doubled, for a total of 36 units, which is a total dollar amount of $6,048.00, inclusive of taxes. For Item 11, 33.2 units are allowed for first counsel’s services, with 4 units being doubled, for a total of 37.2 units, which is a total dollar amount of $6,249.60, inclusive of taxes. Also for Item 11, 15.6 units are allowed for second counsel’s services, with 2 units being doubled, for a total of 17.6 units, which is a total dollar amount of $2,956.80, inclusive of taxes.
[39] The total dollar amount allowed for BC Hydro’s claims submitted under Items 10 and 11 is $27,350.40, inclusive of taxes.
F. Item 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; and; (b) preparation for trial or hearing, per day in Court after the first day. [40] BC Hydro has submitted multiple claims under Items 13(a) and 13(b) in relation to the initial preparation for the trial, which was scheduled to begin on November 16, 2020, for 10 days, and also for the daily preparation for the trial after the first day of the trial had commenced. At paragraphs 26 to 31 of BC Hydro’s Written Representations it is submitted that a significant amount of work was required to prepare for the trial due to the complexity and importance of the matter to BC Hydro, with at least 2 counsel assisting with all of the services claimed under Item 13(a). In response, at paragraphs 16 and 17 of the Plaintiff’s Written Representations the following is submitted:
16. Item 13(a) can only be awarded once, and not 19 times: Hughes p. 5, citing Halford v Seed Hawk Inc, 2006 FC 422 at para 130.
17. Moreover, item 13 is only for correspondence, preparation of witnesses, preparation of subpoenas, and other matters not provided for in the Tariff.
[41] In reply, at paragraphs 13 and 14 of BC Hydro’s Reply Submissions it is submitted that:
15. With respect to paragraph 16, contrary to dTechs’ assertion, Halford does not stand for the proposition that item 13(a) can only be awarded once. Rather, Halford provides that if trial is divided into two portions, item 13(a) cannot be claimed a second time for the second portion of that trial.
16. BC Hydro properly claims each of the services under item 13(a) because item 13(a) expressly provides recovery for, as dTechs acknowledges at paragraph 17 of its submissions, services for preparation for trial including:
a) correspondence;
b) preparation of witnesses;
c) issuance of subpoenas; and
d) other services not otherwise particularized in this Tariff.
17. BC Hydro’s item 13(a) claims are supported by evidence, and reflect the complexity of the proceeding and the amount of work required to prepare for a ten-day trial.
[42] Further to my review of the parties’ submissions, I am in agreement with BC Hydro that the Halford decision makes a distinction that a trial that has been split into separate parts with non-consecutive dates, does not entitle a party to make multiple claims for Item 13(a) for the beginning of each separated part of the trial. Once the trial has begun, any subsequent claims for the preparation for a hearing day are made under Item 13(b). My review of Item 13(a) in Tariff B does not appear to limit any claims submitted to one singular claim for a party’s preparation for the beginning of a trial. I find it reasonable that depending on the facts for a particular trial or hearing, such as the type of proceeding, the number of issues to be argued, the complexity of the proceeding, how voluminous the documentation is, and the number of days of the hearing, that these factors may support multiple claims being submitted under Item 13(a), depending on the submissions and evidence provided by a party and an Assessment Officer’s review of the court record. In addition, I do not agree with the Plaintiff’s argument that “item 13 is only (emphasis added) for correspondence, preparation of witnesses, preparation of subpoenas, and other matters not provided for in the Tariff.” The description for Item 13 found at Tariff B of the FCR, does not include the word only and states the following:
Item 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; and; (b