Last updated: December 3, 2007
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The defendant, a new lawyer at the University of Ottawa Community Legal Clinic, believed that her predecessor, the plaintiff, had made an error. She filed a Claim Notice Report with LawPro, which was subsequently withdrawn. Plaintiff claimed damages for defamation. Spies J. dismissed the claim, as it was made after the expiry of the relevant limitation period. In fixing costs, she said:
¶ 26 The disbursements claimed by the defendant are significant. They include airfare in the amount of $398.00 and online electronic legal research in the amount of $606.00. On its face, the amount for research is excessive as the defendant only referred to six cases. Airfare for counsel is not dealt with in the Tariff, although I have the power to award it if I find that this disbursement was reasonably necessary. I note the plaintiff claimed for mileage and parking in the amount of $477. I was advised that although both the plaintiff and defendant reside in Ottawa, the action was commenced in Toronto and the plaintiff requested in the claim that it be tried in Toronto. As it was reasonable for the defendant to retain Ottawa counsel, I find that that disbursement is reasonable. For these reasons I fix the defendant's disbursements in the amount of $1,100.
¶ 4 The clients object to a disbursement of $359.56 for computer research. The disbursements of $531.36 are modest, and while there is an absence of evidence of the subject of the computer research, I will allow $200.00 as a reasonable amount for computer research as a substantial amount of case law was presented.
¶ 10 This motion was not at all complicated. Although some case-law research was necessary and although Mr. Hopkins did indeed produce several relevant and persuasive cases relating to the circumstances of one parent's removing children to another locality before trial, I cannot understand how Mr. Hopkins could invest 10½ hours obtaining and reading the essence of those cases. Surely in this electronic age, Mr. Hopkins would perform the same task that I, or any other legally trained person, would and "click" the word "mobility" into the QuickLaw website. His computer would then have given him the relevant case law. I decline to award costs for the amount of time claimed for this part of the preparation for the argument.
Vescio had been defended by Adler on fraud charges. In assessing Adler's bill, Assessment Officer C.M. Chiba said:
¶ 49 Further, I find that Mr. Adler is entitled to his fees for the Charter applications, which included drafting of affidavits and factum; for all his correspondence from June 9, 2003 to January 5, 2004; for his morning attendance on the first day of trial on January 5, 2004, when the Crown stayed the charges; and a portion for his trial preparation fees (obtaining and review of disclosure, client discussions etc.). I award only a portion of his fees for trial preparation because, as discussed previously, he had already been partially remunerated for his work on trial preparation in his second-stage flat fee of $10,000 [See Note 69 below] and to charge any more fees would in my view constitute double billing. Also, I find that costs for legal research are not warranted in this case given that this was not a legally complex case and that Mr. Vescio had retained Mr. Adler, a very experienced criminal law lawyer who, when not billing on the basis of flat fee rates, charges a high fee of $500 per hour. A lawyer with such expertise and is expensive must in my view be presumed to be aware of all the relevant law. [See Note 70 below] In the result, and having considered all the relevant assessment factors and evidence, I find that the third stage flat fee retainer, for which $25,000 was paid in advance by Mr. Vescio and his family, to be unreasonable and inordinately high for the legal services provided and, accordingly, reduce this account to $7,500 exclusive of G.S.T. and disbursements.
--------------------------------------------------------------------------------Note 69: See my previous discussion of this matter on pp. 19-20 of this decision.--------------------------------------------------------------------------------
Note 70: See Chown, Cairns v. 601039 Ontario Ltd., [1994] O.J. No. 2982, 1994 CarswellOnt 3809, 1994 Ont. Sup. C.J. LEXIS 2277 (Gen. Div.), at para. 13.
Pitt J. approved a settlement agreement in which defendants agreed to pay damages and costs on a partial indemnity basis. Assessment Officer C.M. Chiba made a preliminary assessment of those costs, but withheld his certificate so as to allow for written submissions. In dealing with those submissions, he said:
Objection #7 re Legal Research and Settlement Time
¶ 62 In the Plaintiffs' Bill of Costs Brief, the total amount of legal research fees claimed payable on a partial indemnity basis was $4,150.00 for 37.9 hours during the period from 1998 to 2003. On assessment, I awarded $900.00 (10 hours) for research, taking into consideration, in addition to all the relevant factors under the Rules, the fact that many of the entries for legal research as evidenced in both the Plaintiffs' accounts and pre-bills did not explicitly mention what the "legal research" was for. There were also other research charges I discounted because I did not consider the costs of such research the kind of costs the Defendants could reasonably expect to pay. Further, and as mentioned elsewhere in this decision, much of the legal work, including research, legal or otherwise, was performed by junior counsel, and I refused costs for research into matters not mentioned or involving, for example, research "re motion for security for costs" or research on costs assessment, which were obviously more for the benefit of the researcher's learning curve and not to advance the litigation. I also discounted costs billed for research performed by Mr. Heller, whose internet research involving "Statistics of income" and "statistical earnings" I did not consider assessable in the circumstances. Given that the Plaintiffs' disbursements allowed in my assessment already included an expert's report for "Financial Advisory Services" in the amount of $7,176.10, I found it unreasonable to expect the Defendants to pay for such non-expert research costs.
The plaintiff Binder commenced actions against several banks. The banks obtained summary judgment stiking out the claims, and were awarded costs. In assessing these costs, Adjudicator W.A. Richardson said:
Charge for Electronic Research
¶ 48 The total claim is $860.94. Reducing that charge by one third results in a charge of $573.96.
¶ 49 Mr. Walker relies on Elliott v. Nicholson (1999), 179 N.S.R. (2d) 264, 553 A.P.R. 264, [1999] N.S.J. No. 310, 1999 CarswellNS 280, 2005 NS.C. LEXIS 472 (T.D.) and Bank of Montreal v. Scotia Capital Inc., 211 N.S.R. (2d) 107, 662 A.P.R. 107, 2002 NSSC 274 (CanLII), [2002] N.S.J. No. 531, 2002 CarswellNS 514, 2002 NS.C. LEXIS 804, where legal electronic research was disallowed as overhead; see also Kimberly-Clark Inc. v. Julimar Lumber Co., 2004 NSSC 71 (CanLII), [2004] N.S.J. No. 128, 2004 CarswellNS 124, 2004 NS.C. LEXIS 119 (T.D.) at para. 11. Such charges were considered part of office overhead and so not chargeable, since overhead is not generally considered to be a taxable disbursement.
¶ 50 Mr. Sullivan on the other hand relies on Keddy v. Western Regional Health Board, [1999] N.S.J. No. 464, 1999 CarswellNS 381 (T.D.), where some (but not all) electronic research was allowed as a reasonable disbursement.
¶ 51 The BOM also submitted that electronic research was more efficient because it was quicker and easier to perform than the "old" way of doing research in a library. This submission is impossible to verify, especially since I have no evidence comparing the cost associated with performing research the "old way" with that of electronic research. It is certainly true that individual cases, once found, can be noted up more quickly via electronic means. But the question of the reasonableness of such noting up remains an issue, especially in respect of an appeal (since most of the law will presumably already have been noted up).
¶ 52 In my view part of the uncertainty in this area stems from the changing nature of electronic research and the cost of its provision over the years.
¶ 53 A decade or more ago electronic databases such as QuickLaw would charge users for each actual use of their service. Each minute of online research time was billed. It was accordingly easier to say that electronic research represented a discreet disbursement (though the question of its reasonableness remained). More recently, the proliferation of alternate types of electronic research (including CR-ROMs, and the free web sites of many courts) have pushed the commercial services into different fee structures. Now many commercial services negotiate flat rates with users on an annual basis. The actual monthly rate in such cases is thus set; it does not vary with the amount of actual online usage. The "bills" that the online research companies issue to the law firms in respect of legal research conducted for any particular file are thus illusory. They would not represent an actual charge or cost; they are simply a "service" provided to the user to assist the latter in assessing a charge to the client for the research being conducted.
¶ 54 What this means is that while there may be a "cost" to the law firm in using the online electronic service, it may not be a cost that relates in any direct way to any particular file or any particular research project. In ordinary course such a flat monthly charge would be overhead borne by the entire firm rather than a disbursement in respect of a particular file or client. Such an expense would be akin to that associated with having a law library, and such expenses have traditionally been seen as overhead and hence not normally a taxable disbursement.
¶ 55 This is not to say that there was any evidence that this is the way the law firm in the case at bar incurs the expense of electronic research. It is to say, however, that I do not have any evidence one way or the other as to how the cost is incurred; and in particular, whether it incurs that cost on an actual file by file basis, or as a monthly or annual flat rate.
¶ 56 Having said that, I can accept that even in the absence of such evidence one might make an argument that some charge would be reasonable in some cases. For example, searches made in respect of legal materials that would not normally be found in a law firm's library could constitute a reasonable disbursement: see, for e.g., Coleman Fraser Whittone & Parcells v. Canada (Dept. of Justice), [2003] N.S.J. No. 272, 2003 NS.C. LEXIS 585 (Small Claims Ct.); see also Parsons v. Canada Safeway Ltd., 1995 CanLII 942 (BC S.C.), [1995] B.C.J. No. 1947, 1995 A.C.W.S.J. LEXIS 51738, where such searches were allowed in respect of otherwise unreported decisions. However, the facts in the case at bar would not support such an approach. I have reviewed the appeal factum of the BOM, and note that most if not all of the cases referred to are Nova Scotia cases found in the NSRs; and that the rest are Supreme Court of Canada and one or two Federal Court cases. All of these could be expected to be found in a major law firm's library. As well, given that this was an appeal, most if not all of the cases had already been briefed in the application before Justice Moir.
¶ 57 In the absence of any evidence as to the actual cost of the electronic research in question; or any evidence as to how the applicant's law firm pays for its access to electronic databases; and in the absence of much if any case law that would be outside the normal collection of a law firm's library; I am of the view that the applicant has not established that the electronic research in this matter was a reasonable disbursement, as opposed to part of its general overhead. I disallow it in its entirety.
Conclusion
¶ 58 For the reasons set out above, I allow the following disbursements as reasonable. All the amounts claimed have been initially reduced by one-third (save the Prothonotary and law stamp charges, which were disallowed in their entirety). The charges were then either allowed as reasonable, or further reduced or disallowed (as discussed above).
Disbursement Claimed Allowed --------------------------------- -------------- -------------- copying and binding (combined) $ 2,421.80 $ 807.27 delivery $ 84.27 $ 56.18 fax $ 868.00 $ 70.00 phone $ 46.87 $ 35.25 postage $ 4.50 $ 3.00 QL Research $ 459.97 $ 0.00 Carswell Research $ 400.97 $ 0.00 Prothonotary $ 165.00 $ 0.00 Law Stamp $ 50.00 $ 0.00 Sundry $ 20.00 $ 13.33 --------------------------------- -------------- -------------- Total $ 4,520.88 $ 985.03
Plaintiff applied for an interim injunction, alleging fraud and other impropriety, but then abandoned the application before witnesses were examined. Defendent sought, and was awarded, its costs of the application. In fixing the amount of costs, T. Ducharme J. said:
¶ 15 As Armstrong J.A. has explained in Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, 48 C.P.C. (5th) 56, 188 O.A.C. 201, 2004 CanLII 14579 (ON C.A.), [2004] O.J. No. 2634, 2004 CarswellOnt 2521, 2004 ON.C. LEXIS 3076 the fixing of costs involves more than merely a calculation using the hours docketed and the costs grid. As Justice Armstrong put it at para. 24 of Boucher, "it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable." He reiterated what the Court had said in Zesta Engineering Ltd. v. Cloutier, 21 C.C.E.L. (3d) 161, 2002 CanLII 25577 (ON C.A.), [2002] O.J. No. 4495, 2002 CarswellOnt 4020, 2002 ON.C. LEXIS 1235, at para. 4:In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant....
¶ 18 Applying the approach taken in Boucher and Zesta Engineering Ltd. I conclude that the amount requested is too high in all of the circumstances. In particular, I find that the amount of research done by Ms. Samuel with respect to basic principles relating to injunctive relief excessive. It also appears that there may have been some unnecessary overlap between the work of the various individuals doing legal research. Additionally, while I accept that Mr. Gastle sought to make his affidavits concise and to the point, I agree that the amount of time expended on the preparation of these affidavits appears to be excessive. I also do not consider it necessary for the defendants to have had three counsel at the November 18, 2004 hearing before Himel J. There was also nothing in the bill of costs reflecting the appearance before me on December 15, 2004.
¶ 19 Accordingly I would award costs on a partial indemnity basis based on the following calculations.(1) I have reduced Mr. Gastle's time from 94.3 hours to 83 hours and would award costs on a $300 hourly rate for a total of $24,900;This results in a total for legal fees of $33,060. I would accept the total disbursements but for the $265 for conduct money/witness fees and the $125 filing fee for the notice of intent to defend. This leaves a total of $3,809.25 in disbursements.
(2) I have reduced Ms. Bennett-Martin's time from 25.5 hours to 23 hours and would award costs on a $225 hourly rate for a total of $5,175;
(3) I have reduced Ms. Samuel's time from 27.7 hours to 15 hours and would award costs on a $130 hourly rate for a total of $1,950;
(4) I would reduce the amount of time attributed to law students from 38.3 hours to 20.1 hours and would award costs at a $50 hourly rate for a total of $1,005; and
(5) I accept the 0.6 hours billed to the law clerk and would award costs at an hourly rate of $50 for a total of $30.00.
A.W. Bryant J., in assessing the costs to be paid by the defendants to the plaintiff, said:
d) Legal Research:
¶ 47 The plaintiff has claimed costs for conducting legal research for the motion before me. As noted, Mr. Dingwall [for the plaintiff] filed a copy of the headnote and a two-page excerpt from LAC Minerals Ltd. v. International Corona Resources Ltd. [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14, 26 C.P.R. (3d) 97, 44 B.L.R. 1, 6 R.P.R. (2d) 1, 35 E.T.R. 1, 101 N.R. 239, 36 O.A.C. 57, 1989 CanLII 34 (S.C.C.), [1989] S.C.J. No. 83, 1989 CarswellOnt 126, as part of his supplementary factum. There were no references to any other case law or to any texts on partnership law or fiduciary duties. I find that the claim for legal research is not substantiated and that the plaintiff is not entitled to any costs for legal research.
¶ 48 Mr. Dingwall did not refer the court to O'Driscoll J.'s decision in Bates v. Brownstones East II Properties Ltd., [1993] O.J. No. 717, 1993 Ont. Sup. C.J. LEXIS 437 (Gen. Div.), where the general partner in a limited partnership was removed. Mr. Dingwall was counsel in that case and there is no explanation why he failed to bring that case to the court's attention.
In assessing the plaintiff's costs against the defendant, Glithero J. said:
¶ 15 The defendant also objects to a claimed disbursement of $48.37 to QuickLaw. I do not understand the nature of the objection or have any concern as to why a legal research service should not be a recoverable disbursement. In this day and age, it likely represents the most cost effective way to locate and copy cases.
Plaintiff brought an action against the Guy Lombardo Orchestra, claiming breach of contract. The motions judge found that there was an agreement with an arbitration clause, stayed the action, and awarded costs to the defendants. The Ontario Court of Appeal allowed the plaintiff's appeal, and reduced the amount of costs awarded to the defendant. Borins J.A. (Lang and Juriansz JJ.A. concurring) said:
¶ 36 Moon challenged the GLOI's disbursements for Quicklaw services, courier services, stationary supplies and postage, as not recoverable on the ground that they are not in the list of disbursements in Tariff A, Part II. While it is correct that these items are not specifically listed in the tariff, in the appropriate circumstances resort can be had to Tariff item 35:Where ordered by the presiding judge or officer, for any other disbursement reasonably necessary for the conduct of the proceeding, a reasonable amount in the discretion of the assessment officer.In addition, Moon challenged the amount for making copies as being an excessive number of copies. Under Tariff item 31, a "reasonable amount" may be awarded for copies of the documents or authorities for the use of the court and supplied to the opposite party.
¶ 37 In commenting on somewhat similar disbursements in Banihashem-Bakhtiari v. Axes Investments Inc. (2003), 66 O.R. (3d) 284, 2003 CanLII 32527 (ON S.C.), [2003] O.J. No. 3071, 2003 CarswellOnt 2951, 2003 ON.C. LEXIS 2152, at para. 52 Lane J. stated:There are over $200,000 in disbursements claimed. The defendants objected to several categories as falling outside the tariff. These included faxes, long distance, couriers and legal research (i.e., Quicklaw etc.). These omissions merely illustrate the degree to which the tariff of disbursements has lost touch with modern legal practice. All of these items are everyday costs in running any litigation and are case-specific, rather than mere overhead, as for example, the cost of local telephone service is. If they are not included expressly, they are certainly disbursements "reasonably necessary for the conduct of the proceeding" within Tariff item 35, and I so order.An appeal to this court from Lane J.'s costs order was dismissed without comment on disbursements: 69 O.R. (3d) 671, 182 O.A.C. 185, 22 C.C.L.T. (3d) 200, 46 M.P.L.R. (3d) 33, 2004 CanLII 36112 (ON C.A.), [2004] O.J. No. 302, 2004 CarswellOnt 456; 2004 ON.C. LEXIS 404, additional reasons at 22 C.C.L.T. (3d) 217, 46 M.P.L.R. (3d) 50, 2004 CanLII 36112 (ON C.A.), [2004] O.J. No. 1090, 2004 CarswellOnt 1031; 2004 ON.C. LEXIS 1070, leave to appeal refused [2004] 3 S.C.R. vii, [2004] S.C.C.A. No. 145, 2004 CarswellOnt 3779.
¶ 38 In 3664902 Canada Inc. v. Hudson's Bay Co., 22 C.P.C. (5th) 102, [2002] O.J. No. 2096, 2002 CarswellOnt 1712, 2002 Ont. Sup. C.J. LEXIS 963, at para. 25, Lang J. stated:The plaintiff is entitled to compensation for reasonable costs for facsimile, telephone, and courier, provided such costs do not fall within standard office overhead, that they are charged at a reasonable rate and they are not unusually high.On appeal to this court, her order respecting disbursements was not considered: 169 O.A.C. 283, 2003 CanLII 26101 (ON C.A.), [2003] O.J. No. 950, 2003 CarswellOnt 869, 2003 Ont. C. A. LEXIS 125.
¶ 39 It would seem, therefore, that amounts disbursed for Quicklaw services, courier services, stationary and postage may be recoverable under Tariff item 35 if the service or expense is "reasonably necessary for the conduct of the proceeding", the amount is reasonable and has been charged to the client, and the disbursement does not fall within standard office overhead. Indeed, as Quicklaw and similar search vehicles have become convenient aids to research, although not found in the Tariff, their costs should be recoverable as disbursements provided they are not excessive and have been charged to the client. It is for the party seeking recovery of the disbursements to satisfy these criteria.
¶ 40 In my view, the GLOI has satisfied the criteria with respect to Quicklaw and courier expenses. It is also entitled to the reasonable cost for making copies, but based on considerably fewer copies than were made. As the GLOI did not object to Moon's position that stationary and postage expenses are not recoverable because they come within standard office overhead, these expenses are not recoverable.
The plaintiff, Ernst, was awarded damages and costs against the defendants. In fixing the amount of costs, Henderson J. said:
¶ 11 The only significant disbursement that was in dispute was an amount paid to a lawyer for legal research in the amount of $3,242.10. Counsel for the defendants argued that this amount seemed extraordinarily high, but I note that counsel for the plaintiff did not employ a junior counsel at any other time in order to prepare for trial or to assist at trial. In my view, the use of a research counsel who charged modest hourly rates for his services was an efficient way in which to properly prepare for the trial.
Tenants were awarded damages against a landlord with respect to smoke inhalation in a stairwell. The tenants were awarded substantial indemnity costs, fixed at $1,470,000 plus disbursements. Lane J. said:
¶ 52 There are over $200,000 in disbursements claimed. The defendants objected to several categories as falling outside the tariff. These included faxes, long distance, couriers and legal research (i.e Quicklaw etc.). These omissions merely illustrate the degree to which the tariff of disbursements has lost touch with modern legal practice. All of these items are everyday costs in running any litigation and are case-specific, rather than mere overhead, as for example, the cost of local telephone service is. If they are not included expressly, they are certainly disbursements "reasonably necessary for the conduct of the proceeding" within Tariff item 35, and I so order.
In assessing costs, Timms J. said:
¶ 10 In passing, I am still rather puzzled by the position taken by counsel for the applicant regarding Rothgeisser, supra [Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON C.A.), 46 O.R. (3d) 577, 183 D.L.R. (4th) 310, 128 O.A.C. 302 (Ont. C. A.)]. She knew of a direct authority from our Court of Appeal which said that her client could not proceed under the Divorce Act. She deliberately withheld that from both the court and the respondent. After I discovered the case, she said that she could distinguish it and that it had been distinguished before. She later failed to distinguish it and she failed to produce any authority doing so. I can see no other conclusion but that her conduct is a contravention of various aspects of Rule 4 of the Code of Professional Conduct of the Law Society of Upper Canada. Whether that conduct gets reported, I will leave up to others.
The plaintiff, a Canadian soldier, was sexually assaulted by another soldier. By the terms of a settlement, the plaintiff was entitled to solicitor and client costs against the defendants. In assessing these costs, Adjudicator Richardson said:
COMPUTERIZED LEGAL RESEARCH
¶ 77 The Crown submits that the total charge for computerized legal legal research ($1,039.24 for Mr. Fraser and $502.44 for Mr. McKiggan) is "excessive."
¶ 78 These charges strike me as being unreasonably high. There is some case law that stands for the proposition that, at least on a party-and-party taxation, computerized legal research is really part of office overhead and ought not to be allowed on a taxation: see for e.g., Elliott v. Nicholson (1999), 179 N.S.R. (2d) 264, 553 A.P.R. 264, [1999] N.S.J. No. 310, 1999 CarswellNS 280, 2005 NS.C. LEXIS 472 (T.D.) at para. 7; Bank of Montreal v. Scotia Capital Inc., 211 N.S.R. (2d) 107, 662 A.P.R. 107, 2002 NSSC 274 (CanLII), [2002] N.S.J. No. 531, 2002 CarswellNS 514, 2002 NS.C. LEXIS 804, at para. 15. On the other hand, this is a solicitor and client taxation: Bank of Montreal v. Scotia Capital Inc.; and there is some support for the proposition that at least some computerized research is "cost effective:" Keddy v. Western Regional Health Board, [1999] N.S.J. No. 464, 1999 CarswellNS 381 (T.D.) at para. 18.
¶ 79 The jurisprudence of necessity consulted by the lawyers covered all of the provinces, which accordingly involved researching case law and case reports that would not normally be expected to in the office library of a law firm (outside of the very largest). I am accordingly inclined to allow some but not all of the computerized research claimed. In my view, it is reasonable in the circumstances to deduct $1,100 from the total amount claimed.
Rowbotham J. awarded damages and costs for negligence resulting in a motor vehicle accident:
3. Research
¶ 43 The plaintiff's Bill of Costs includes a disbursement for contract research. The defendants, Luu, claim a disbursement for QuikLaw searches.
¶ 44 Rule 605(3) provides:(3) Each item in Schedule C shall be deemed to include all instructions, documents, attendances, letters and other services necessary or convenient to be taken, prepared, made, written, read, performed or had, for the purpose of fully completing the step in the cause referred to or implied in the item; and if any step has been begun but only partially completed a proper proportionate part of the charge may be allowed.¶ 45 The general principle regarding disbursements is:Disbursements should not be used as a means, even unintentionally, of distorting the cost scheme by allowing, as a disbursement, fees for work normally considered part of the cost of litigation to which Schedule C applies. Taken to the extreme, preparation for trial could be subcontracted to another firm and reimbursement of that firm's account sought as a disbursement.(See Sidorsky v. C.F.C.N. Communications Ltd. (1998), 216 A.R. 151, 175 W.A.C. 151, 26 C.P.C. (4th) 374, 1998 ABCA 127 (CanLII), [1998] A.J. No. 475, 1998 CarswellAlta 325, 1998 A.R. LEXIS 698. )
¶ 46 Research has been held to be a part of what is intended to be included in party and party costs. It is a lawyer's function whether counsel does it himself or retains another lawyer to do the research for him. Accordingly, it is not properly claimed as a disbursement. I take a similar view with respect to the disbursement claimed for QuickLaw. I note the observation of Bracco J.A. in Argentia Beach v. Warshawski (1990), 106 A.R. 222, [1990] A.J. No. 340, 1990 A.R. LEXIS 5503 (C.A.) that computer searching is akin to legal research or other work of the lawyer. This view has also prevailed in Lalli v. Chawla (1997), 53 Alta. L.R. (3d) 121 203 A.R. 27, [1997] A.J. No. 457, 1997 CarswellAlta 385, 1997 A.R. LEXIS 1835 (Q.B.) and Reid v. Stein, [2000] 2 W.W.R. 349, 73 Alta. L.R. (3d) 311, 253 A.R. 90, 1999 ABQB 222 (CanLII), [1999] A.J. No. 533, 1999 CarswellAlta 397, 1999 A.R. LEXIS 1435 . Accordingly, neither item (contract research nor QuickLaw) may be claimed as a disbursement in this case.
Sullivan J. heard the client's appeal of the taxation of a bill of costs:
¶ 4 On June 17, 2002 the client received a bill from the law firm in the amount of $5,029. The client states that special arrangements were not made and the law firm does not dispute that there was discussion with respect to fees being on a contingency basis after the Statement of Claim was prepared, however the firm states in their submission that they had to do research and prepare an opinion for the client prior to the preparation of the Statement of Claim and that the bulk of the fee is relative to preparation of the opinion letter. The client states that there was never any request for an opinion.
...
¶ 8 ... The client instructed the law firm to prepare a Statement of Claim. I find as a fact that the client was led to believe that he would receive a Statement of Claim for $1,500 and the failure to recognize this fact by the taxing officer constitutes an error of principle. They are, therefore, on the evidence before me not entitled to any fee. The law firm advertises itself as experienced in employment law, wrongful dismissal, severance packages, breach of contract and employment agreements. They have not produced the Statement of Claim. They have not performed. Having advertised themselves as having this expertise the client would not normally expect to be billed for briefing and research on employment related issues as straightforward as this one.
¶ 9 In the result the account is taxed to $0.00.
Assessment Officer Brozyski assessed the party and party costs of expropriation proceedings:
¶ 35 The issue of the junior solicitor, Mr. Rayman, as I see it, is that he was just called to the Bar in 2001 and only out approximately three months at the time he was requested to help with the legal research and information that would be passed on to Mr. Somerville in Ottawa. Was he useful and helpful in that sense? I have no evidence to suggest that the answer is no.
¶ 36 Although at the same time I believe his involvement is a learning process that was entangled with unreasonably excessive time dealing with getting up to speed and duplication, how much true value for time spent he added to the process is questionable in my mind.
¶ 37 Speaking of value for services rendered, I do not believe that the student, J.E. Aurini, has added any value. His research on costs of assessment appears to have fallen between the cracks of this proceeding. I do not see how it helped to advance the assessment hearing, other than being a learning curve for the student.
Plaintiff was awarded damages for breach of contract following a five-day trial. and applied for costs. In fixing costs, Lang J. made the following remarks:
¶ 10 The Costs Grid fixes maximum hourly rates for counsel working on the file. As indicated above, the hourly rate for senior counsel has been agreed at $320.00 per hour. The hourly rate claimed for junior counsel, who had 7 1/2 years experience, is in dispute. The junior counsel did considerable work on the file and attended at trial, but did not participate in any examinations of the witnesses or make any submissions. Indeed, senior counsel agreed that, had she been available, he would have continued to use the significantly more junior lawyer who had worked on the file since its inception. Unfortunately, she became busy on other matters and was no longer available for this file. In those circumstances, taking into account the nature of the work performed by the junior lawyer, a counsel fee of $150.00 per hour, as suggested by the defendant, is appropriate. The work of the predecessor junior lawyer (who started as an articling student and who continued to do some work on the file after her call to the bar) should be included in the Bill of Costs at $100.00 per hour.
¶ 11 In the Bill of Costs, counsel suggested that the maximum hourly rate structure for students at $60.00 and law clerks at $80.00 should apply. No information was given to suggest that any of the students had any degree of experience or expertise in litigation matters. The law clerks, however, and particularly the primary law clerk, did have more than ten years experience. The appropriate hourly rates for the law students, in the absence of any information to support the maximum allowable rate, should be $50.00 per hour, and that of the law clerks should be $60.00 per hour.
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¶ 13 I deal now with the items to which the defendant objected on the basis that they are not included in the listed compensable items. On examinations for discovery, the defence took under advisement a question about production of a particular document. The plaintiff contemplated a productions motion and undertook legal research. The motion was never brought because the material was produced. When the defendant took the matter under advisement, it was reasonable for the plaintiff to do some research on the relevant issue of privilege, which was an important one for trial. It is undoubtedly a matter that may be billed to the client. However, where the matter was resolved as part of documentary discovery and no motion was brought, I would not award any amount for the 24.8 hours of time docketed on this issue.
...
¶ 25 I turn now to a consideration of disbursements. First, issue is taken with the routine disbursements. Photocopies, postage, facsimile, telephone, courier and binding are claimed separately in a total amount of $6,773.07. Those expenses are not itemized at a cost per item and the defendant takes exception to their quantum. The onus is on the plaintiff to establish that those costs are appropriate for reimbursement. Binding, in my view, which is conceded to have been done in-house by the plaintiff law firm, is more appropriately classified as office overhead. Postage, from a review of the particulars provided, appears to be ordinary mailing costs, also a part of standard office overhead. Binding and postage are therefore not compensable. The photocopying costs alone total $4,403.00. It is conceded that this disbursement must be reduced for the legal research done for motions that were never pursued. The plaintiff is entitled to compensation for reasonable costs for facsimile, telephone, and courier, provided such costs do not fall within standard office overhead, that they are charged at a reasonable rate and they are not unusually high. I fix all those routine disbursements in total at $4,630.00.
...
¶ 27 Court fees for filings, process server fees, fees for transcripts on an unexpedited basis, Quicklaw fees (after reduction for research on motions not pursued), and travel expenses are all reasonable in the circumstances and are allowed at a total of $3,374.35. I find the travel expense claimed to be reasonable and allow the expense to interview witnesses more conveniently congregated in Montreal than they could have been in Toronto.
Geto's restaurant was destroyed by arson. He retained Squires to make an insurance claim against Wellington insurance. Squires missed the limitation period, so Geto retained Roberts to make a negligence claim against him. LPIC took carriage of Squires' defence. A settlement was agreed to, and funds were deposited in Roberts trust accounts. Before these funds were disbursed, however, LPIC received information that Roberts and Geto were part of a fraudulent conspiracy with respect to the arson and insurance claim. On the basis of this, LPIC filed a notice of action against Geto, and obtained an ex parte interim injunction freezing the settlement proceeds. In the action that followed, however, LPIC made no claim of fraud against Roberts. Roberts moved for an order that LPIC pay the costs of separate counsel to represent him. LPIC offered a discontinuance and $20,000 on account of costs in return for an undertaking to hold the settlement funds until further order. Roberts accepted. After the discontinuance, however, Roberts moved to be re-added as a party, alleging an interest in fees due from Geto, payable out of the settlement funds. Nordheimer J. dismissed this motion, and awarded costs of the motion to LPIC. He disallowed, however, the following disbursement:
¶ 21 I have little information in support of the disbursements claimed. Mr. Roberts objects to a charge of $435.10 for QuickLaw research which he asserts WeirFoulds would not have paid because they are on a flat fee arrangement with QuickLaw. That would appear to be a fair objection. In any event, the amount sought for QuickLaw research is inordinately high for a matter that ought not to have required much research. I therefore disallow that amount. I would otherwise allow the disbursements for photocopying and the like which total $588.11.
The plaintiff was awarded damages and costs against Kozak for negligence resulting in a motor vehicle accident. Upon Kozak's application, Registrar Baker assessed the plaintiff's costs:
¶ 15 Quicklaw Research. With considerable candour Mr. Halpin advised me that, once he was advised which judge would be hearing the trial (had it proceeded), he scanned the databanks of Quicklaw to determine if that judge had heard any similar or analogous cases. He found none. This, Mr. Cole argues, is not legal research per se and that even if it was, it is precluded by Master Chamberlist's (as he then was) decision in Powar v. Her Majesty the Queen, 1995 CanLII 534 (BC S.C.), [1995] B.C.J. No. 706, 1995 CarswellBC 2569, 1995 A.C.W.S.J. LEXIS 47776, and by Master Wilson's (as he then was) conclusions in Moore v. Dhillon, [1992] B.C.J. No. 3055, 1992 CarswellBC 1453, Quesnel Supreme Court Registry No. 1043. I agree with both submissions. While it may well be good counsel work to anticipate and attempt to determine a judge's experience with a particular issue or cause of action, the cost of doing so is not attributable to the other party. Moreover, absent the reasons or justifications considered by me in Sandhu v. Insurance Corporation of British Columbia, 45 C.P.C. (4th) 266, 23 B.C.T.C. 303, 1999 CanLII 5883 (BC S.C.), [1999] B.C.J. No. 2479, 1999 CarswellBC 2441, 1999 B.C.T.C. LEXIS 2038, Prince George Supreme Court Registry No. 04473, September 28, 1999, at para. 18, the cost will not be allowed.
The client, Steel, retained Boyne Clarke with respect to a family law dispute, but later discharged the firm. In taxing the firm's bill, Adjudicator Richardson said:
Computerized Legal Research
¶ 85 There was a total charge of $265.16 in respect of computerized legal research. Ms. Conlon stated that this was a charge in respect of her use of Quicklaw to do legal research. She stated that she used Quicklaw because the Claimant's law library had discontinued a number of the family law reporter series.
¶ 86 However, I note in this regard that, at least according to Ms. Conlon, some if not all of the research she was doing involved Supreme Court of Canada decisions in this area; and such decisions are available for free on the Supreme Court of Canada's website.
¶ 87 In addition, I have some difficulty with the reasonableness of a solicitor charging a client for access to legal materials that many solicitors, at least in a firm the size of the Claimant's, would have in their library. A firm normally cannot charge the costs associated with maintaining a law library to the client, since such a cost is normally a part of overhead, which is recovered if at all as part of the lawyer's hourly rate. That being the case, it strikes me as unreasonable to shift the burden of such overhead onto the client by relying on "for charge" legal resources rather than an in-house law library. This is not a case, in other words, where Ms. Conlon had to access information that would not normally be found in a law library. For this reason, with respect, I decided to follow the decision in Elliott v. Nicholson (1999), 179 N.S.R. (2d) 264, 553 A.P.R. 264, [1999] N.S.J. No. 310, 1999 CarswellNS 280, 2005 NS.C. LEXIS 472 (T.D.) rather than that in Keddy v. Western Regional Health Board, [1999] N.S.J. No. 464, 1999 CarswellNS 381 (T.D.). I have disallowed the amount of $265.16 in respect of computerized legal research, at least in the absence of any evidence that the materials accessed were rare or would not normally be available in a law library except through a computerized service.
The plaintiff brought actions against a number of defendants. Although continuing against some, plaintiff discontinued its action against Gulf Log Salvage Co-Operative Assn. Gulf Log Salvage Co-Operative Assn. applied for costs. In assessing those costs, Assessment Officer Stinson said:
¶ 6 The Plaintiff argued further to Meredith v. Pratt, 1999 CanLII 7395 (F.C.), [1999] F.C.J. No. 15, 1999 CarswellNat 83, at para [10] and Ager v. International Brotherhood of Locomotive Engineers, [1999] F.C.J. No. 909, 1999 CarswellNat 1007, that there is generally no evidence of reasonableness of and necessity for disbursements except for the bald statement in the supporting affidavit that they were "reasonably and necessarily incurred". The Plaintiff argued that purpose, but not reasonableness and necessity, of fees such as those for transcripts of examinations is evident on the face of the invoices, but that it is not evident what was sent or copied under facsimile and photocopy charges, although some were likely necessary, and therefore their relevance is not evident. The Plaintiff suggested an arbitrary reduction to $100 and $400 for facsimiles and photocopies respectively given insufficient evidence for the amount claimed. The rate of $0.25 per page for photocopies is acceptable. The Plaintiff argued, further to Pardee Equipment Ltd. v. Canada, 1998 CanLII 8015 (F.C.), [1998] F.C.J. No. 751, 1998 Fed. Ct. Trial LEXIS 934, at para. 17, that costs for computerized research are part of a lawyer's fee built into the overhead of the law office and are therefore not recoverable as disbursements. The Plaintiff argued that the amount for transcripts should be reduced because much of the discovery was not reasonably necessary. The Plaintiff argued that the net $31,990.32 asserted for solicitor-client costs is not substantiated in the evidence and therefore should not be given any weight.
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¶ 11 Gulf Log argued that its supporting affidavit identifies each photocopy and that the actual cost was reduced to $0.25 per page for this bill of costs. Gulf Log asserted that this litigation required service on two different parties, often on short notice, and that even the Plaintiff's reply affidavit for this assessment was served on short notice. Gulf Log argued that it would therefore be unfair to arbitrarily reduce the $557.00 claimed for photocopies in the face of an affidavit on which the Plaintiff chose not to cross-examine. Gulf Log argued that cases more recent than Pardee Equipment supra have approved computer legal research as a disbursement. The $110.29 claimed here is minimal for a matter characterized by the Plaintiff as an important constitutional test.
Assessment Officer Moquin assessed the party and party costs of an action for constructive dismissal:
¶ 11 The Defendants also objected to the allowance of the disbursement items for faxes and Quicklaw research totalling $1,882.68 ($1,759.51 + $123.17 GST) saying that disbursements outside the Tariff are not to be allowed (Bratt v. Hanes (1988), 65 O.R. (2d) 612 (H.C.)). Counsel for the Plaintiff submits that the cost of faxes and computer based legal research are not only necessary expenses of modern day litigation but also serve to reduce amounts which would otherwise fall to be assessed under the disbursement provisions of the Tariff. While I do agree with this, counsel for the Defendants is correct. An Assessment Officer is bound by the Tariff and Rule 58.05(1) which provides:Where party and party costs are to be assessed, the Assessment Officer shall assess and allow,The total amount of $1,882.68 for these two items is disallowed.(a) solicitors' fees and disbursements in accordance with the Tariffs; andand no other fees, disbursements or charges shall be assessed or allowed unless the court orders otherwise.
(b) disbursements for fees paid to the court, a court reporter, an official examiner or a sheriff under the regulations under the Administration of Justice Act
Aston J. assessed the party and party costs of family law proceedings:
(4) The Interim Account of February 29, 2000
¶ 22 The case was originally on a trial list for March and this account essentially represents preparation for trial. The time and rates seem reasonable. For the reasons given earlier, Mr. Osmar's responsibility approaches full indemnity, but this account also includes three different lawyers on behalf of the wife, and he should not be responsible for the duplication of time necessitated by each becoming familiar with the detailed facts, nor should he be responsible for all the time spent on legal research by the more junior lawyer. The total fees, disbursements and G.S.T. amount to $4,087.53. Mr. Osmar is ordered to contribute $2,500 towards that total, a contribution of approximately 60 percent.
(5) The Final Account of May 19, 2000
¶ 23 The use of junior counsel (at a reduced rate), the description of services, time spent, hourly rates and daily counsel fee all seem reasonable. I make some minor adjustment for legal research, which has a value to the lawyer beyond the value to the individual client in this case. As between the parties, I do not allow the cost of copying caselaw which seems to me part of a lawyer's overhead and included in the hourly rates. A counsel fee of $3,000 per diem for a lawyer of Mr. Mamo's reputation, skill and experience is perhaps generous in this jurisdiction for the amount in issue but not outside of a reasonable range, considering the complexity of the case. I also take into account that, in this trial, there was, no doubt, a need for Mr. Mamo to spend time after each day of evidence, in anticipation of the next day. The total of this particular account, including G.S.T. and disbursements, is $29,001.11.
Pharmacia had sought, by originating motion, to prohibit the Minister from issuing a notice of compliance to the respondent, David Bull Laboratories. The motion was dismissed, and David Bull was awarded costs. In assessing those costs, Assessment Officer Smith said:
¶ 48 On-line search charges are claimed at $332.70. This item was opposed by the applicants as being part of the respondent law firm's overhead. Counsel further suggested that, if I decide to allow this item, the respondent's claim is, in any event, flawed by lack of evidence to substantiate what was searched and its necessity.
¶ 49 The applicants relied on All Canada Vac Ltd. v. Lindsay Manufacturing Inc., [1992] F.C.J. No. 352, Court file no. A-185-90, Parlee T.O., April 9, 1992 in support of the proposition that computer research charges should be considered as overhead. I note however that this disbursement has been allowed when justified in other assessments in this Court (see for example CNR v. North Pacific Steamship Co., [Q.L. [1992] F.C.J. No. 1293 ]] (T.D.); Canastand Industries Ltd. v. The Lara S [Q.L. [1995] F.C.J. No. 1157 ]] (T.D.); Ager v. International Brotherhood of Locomotive Engineers, [1999] F.C.J. No. 909, 1999 CarswellNat 1007, Court file no. A-310-97, Stinson A.O., May 21, 1999; and IPSCO Manufacturing v. Stewart, unreported, Court file no. T-344-98, Stinson A.O., July 23, 1999).
¶ 50 The expense of computer research is being seen in assessments with increasing frequency. In Maison Des Pâtes Pasta Bella Inc. v. Olivieri Foods Ltd., 1998 CanLII 8334 (F.C.), [1998] F.C.J. No. 1171, 1998 CarswellNat 3109, 1998 Fed. Ct. Trial LEXIS 1252, Court file no. T-1518-97, Parlee A.O., August 18, 1998, the same assessment officer as the All Canada Vac case (supra) had this to say:Counsel for the applicant, still referring to Energy Absorption Systems Inc. (supra), objected to the claim of $38.20 plus G.S.T. for computer search charges suggesting it be disallowed as overhead.I note that the Maison Des Pâtes assessment was later reviewed by the Court ( 86 C.P.R. (3d) 356, 163 F.T.R. 252, 1999 CanLII 7495 (F.C.), [1999] F.C.J. No. 213, 1999 CarswellNat 248, 1999 Fed. Ct. Trial LEXIS 154 ), but the assessment officer's finding on computer search charges was left undisturbed.
[17] In juxtaposition to Energy Absorption, assessment officer Stinson of this Court, in CNR v. North Pacific Steamship Co., [Q.L. [1992] F.C.J. No. 1293 ]] (T.D.), recognized the extraordinary growth of computers in the workplace and the fact that part of the fees for research have metamorphosed to disbursements.
If this tool does represent a shift in onus for certain costs from the successful to the unsuccessful party (because fees are partially indemnified but disbursements, to the extent of reasonable necessity, are fully indemnified), it is a reality to which litigants must adjust. Unless it was apparent that the search was unnecessary, the fact that nothing of use was found should not be a critical consideration for allowance, disallowance or reduction. Rather, the critical consideration is whether the decision to incur the disbursement and to pay the amount presented was prudent representation of the client in the circumstances existing at the time and consistent with the criteria of reasonable necessity in Tariff B 1 (2) (b).
[18] In Canastand Industries Ltd. v. The Lara S, [Q.L. [1995] F.C.J. No. 1157 ]] (T.D.) assessment officer Stinson also allowed a Quicklaw disbursement as reasonable and necessary.
[19] Other recent Federal Court assessment officers allowing search costs include
- Volkswagen Aktiengesellschaft v. Global Auto Service, T-1535-96, Pace T.O., Feb. 18/97
- The Queen v. W. Ralston & Co. (Canada) Inc., [1997] F.C.J. No. 291, 1997 Fed. Ct. Trial LEXIS 806, T-3765-82, Lamy T.O., Mar. 11/97.
[20] In view of these precedents, and acknowledging what I now accept as a change in research needs and techniques, the computer search charges, having been reasonable and necessary, at least in the present case, are allowed.
¶ 51 More recently, the issue of computer searches was considered in this Court in the case of Ferguson v. Arctic Transportation, unreported, Court file no. T-1941-93, July 29, 1999. Assessment Officer Stinson decided:[11] Computer-assisted research represents a transition in one area of the practice of law. This was the subject of an analysis published by the Vancouver Bar Association in The Advocate, Vol. 55, Part I, January, 1997, page 79 entitled Recovery of Legal Research Expenses and Assessments of Costs by Lisa A. Peters. This paper examined the approach in several jurisdictions and urged (p. 85) that "computer database providers should be treated for all purposes as disbursements, rather than as a component of lawyer's fees for preparation of a case, or, worse yet, as a non-recoverable component of overhead". At pages 83-84, it quoted from my decision in CNR v. Norsk Pacific Steamship Co., [1994] F.C.J. No. 1293 (7) :¶ 52 I agree with the view expressed in the Ferguson case. The practice of law is rapidly evolving to keep pace with technology. The result will be manifested in greater efficiencies and economies for all concerned. I therefore accept computer searches as a proper disbursement, when justified, and will allow it here in favour of the respondent. The question now arises as to the amount to be assessed against the applicants. In other words, what portion, if not all, of David Bull's claim for computer searches should be considered reasonable?If this tool does represent a shift in onus for certain costs from the successful to the unsuccessful party (because fees are partially indemnified but disbursements, to the extent of reasonable necessity, are fully indemnified), it is a reality to which litigants must adjust. Unless it was apparent that the search was unnecessary, the fact that nothing of use was found should not be a critical consideration for allowance, disallowance or reduction. Rather, the critical consideration is whether the decision to incur the disbursement and to pay the amount presented was prudent representation of the client in the circumstances existing at the time and consistent with the criteria of reasonable necessity in Tariff B 1(2)(b).[12] My view of computer-assisted research has not changed. I do not find charges associated with an employer-employee relationship in a law firm, such as those for secretarial services disallowed above, comparable to charges such as these representing a shift to contracts with third parties for access to various data bases.
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7 [Q.L. [1994] F.C.J. No. 1293 ] (T.D.).
Various lien claims had been referred to Master Clark. The defendant sought to have the Master recuse himself, alleging that there was a reasonable apprehendion of bias. The motion was denied, and the plaintiff asked for costs to be fixed. One of the disbursements disallowed was as follows:
¶ 32 ...
(2) The items for "Research - Quick Law" and for the Waterloo Law Association are in the nature of capital expenditures (reproduction of reported decisions) and may not be claimed as a disbursement.
Salhany J. confirmed the report of an Assessment Officer which had reduced a law firm's account rendered to a client:
¶ 13 Finally, I have some difficulty with Mr. Donegan's submission that the solicitor should be entitled to charge the client for research of the law. I recognize that the law has become very complicated because of the proliferation of statute law and judicial authorities. Nevertheless, a client who retains a solicitor of many years experience and who is prepared to pay for that solicitor's higher hourly rates because of that experience is entitled to assume that the solicitor will be aware of all of the relevant law. Indeed, the client makes a decision to pay a higher hourly rate because he assumes that the solicitor has that special expertise and knows the law. To charge the client on top of that, a fee for "researching the law" flies in the face of the reason that solicitor was chosen. Ironically, although the ordinary citizen is presumed to know the law, solicitors appear to be only persons in society who can charge a client for that ignorance.
¶ 14 I recognize that it is the practice of taxing officers to allow charges for legal research. In my view, it should not be an automatic allowance. It should only be allowed in unusual cases for the reasons which I have already given. I would doubt very much if a client would be prepared to pay a higher hourly rate to an experienced solicitor on the basis of that experience only to find that the solicitor is also charging him to do research.
The defendant, who had made an offer to settle, succeeded at trial, and was awarded costs. The disbursements allowed by Kurisko J. included the following:
¶ 32 ... The disbursement for the Quicklaw search, fixed at $118.55, is allowed.
Farley J. assessed the party and party costs of litigation:
¶ 13 (d) Concerning the point of paying for a legal education, this would have the validity if counsel were inexperienced in a particular field. In this case, counsel demonstrated to me quite effectively their general competence for this type of litigation generally. However I find it disingenuous to think that counsel should be expected to know all the law of every case before getting involved in any case. I do not see that the amount of involvement in legal research was out of line. Out of pocket costs for this are an appropriate reimburseable item.
The plaintiff had applied for relief pending trial, including an injunction and an order that the defendant pay royalties. The application had been "so hopelessly deficient" that, in addition to it being dismissed, an award of solicitor-client costs had been made against the plaintiff. Upon application by the plaintiff, the court ordered the plaintiff's solicitors to pay those costs personally. The court decided that it had jurisdiction to make such an order, and that in a clear case it was pointless to require the plaintiff to pay the costs and bring a second action in order to recover damages from its solicitors. In oral reasons, Gibbs J. made the following remarks concerning the solicitors' negligence:
¶ 16 The standard required of solicitors in the performance of their duties to their clients is described by Mr. Justice Le Dain [in Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 31 D.L.R. (4th) 481 34 B.L.R. 187, 37 C.C.L.T. 117, 42 R.P.R. 161, 75 N.S.R. (2d) 109, 186 A.P.R. 109, 69 N.R. 321, [1986] R.R.A. 527, 1986 CanLII 29 (S.C.C.), [1986] S.C.J. No. 52, 1986 CarswellNS 40; reversing 147 D.L.R. (3d) 260, 25 C.C.L.T. 226, 28 R.P.R. 185, 57 N.S.R. (2d) 125, 120 A.P.R. 125, [1983] N.S.J. No. 55, 1983 CarswellNS 119 ] in these words, starting at p. 167 [S.C.R.]:...¶ 17 In my opinion the conduct of the Plaintiff's solicitors in this case fell far short of the reasonable care, skill and knowledge which the Plaintiff was entitled to expect. The American Cyanamid principles [American Cyanamid Co. v. Ethecon Ltd., [1975] A.C. 396 (H.L.)] ought by now to be part of the working knowledge of a competent counsel in this jurisdiction. If they are not, then any counsel contemplating an injunction application ought to be able to perceive the need to research the law before preparing the material to be filed. It may be that the Aetna Financial case [Aetna Financial Services v. Feigelman et al. (1985), [1985] 1 S.C.R. 2, 15 D.L.R. (4th) 161, [1985] 2 W.W.R. 97, 4 C.P.R. (3d) 145, 55 C.B.R. (N.S.) 1, 29 B.L.R. 5, 56 N.R. 241, 32 Man. R. (2d) 241, 1986 CanLII 29 (S.C.C.), [1985] S.C.J. No. 1, 1985 CarswellMan 19 ] is not as well known, however a moderate amount of research would quickly have brought it to light, and that research should have been undertaken as part of the preparation for a bid for what are known to competent counsel to be extraordinary remedies not lightly granted by the Court. It is for these reasons, and in accordance with the principles I have read from the Rafuse case that I conclude that the Plaintiff's solicitors were negligent in the performance of their duty to him. That negligence led to the award of solicitor-client costs.
The requirement of professional competence that was particularly involved in this case was reasonable knowledge of the applicable or relevant law. A solicitor is not required to know all the law applicable to the performance of a particular legal service, in the sense that he must carry it around with him as part of his 'working knowledge', without the need of further research, but he must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points. The duty in respect of knowledge is stated in 7 Am. Jur. 2d, 'Attorneys at Law' 3] 200 in a passage that was quoted by Jones J.A. in the Appeal Division as follows [[at p. 269070] p. 269, 147 D.L.R.]:An attorney is expected to possess knowledge of those plain and elementary principles of law which are commonly known by well-informed attorneys and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.See Charlesworth and Percy on Negligence (7th ed., 1983), pp. 577-78 to similar effect, where it is said:Although a solicitor is not bound to know the contents of every statute of the realm, there are some statutes, about which it is his duty to know. The test for deciding what he ought to know is to apply the standard of knowledge of a reasonably competent solicitor.The duty or requirement of professional competence in respect of knowledge is put by Jackson and Powell, Professional Negligence (1982), at pp. 145-46 as follows:Although a solicitor is not "bound to know all the law," he ought generally to know where and how to find out the law inso far as it affects matters within his field of practice. However, before the solicitor is held liable for failing to look a point up, circumstances must be shown which would have alerted the reasonably prudent solicitor to the point which ought to be researched.
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