Last updated: December 6, 2012
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The receiver of Austin obtained a declaration that a lease had been renewed, and was awarded costs on a partial indemnity basis. F.J.C. Newbould J. said:
¶ 6 Disbursements are not contested other than a disbursement of approximately $1000 for computerized legal research. It is asserted that this expense should be covered by a lawyer's overhead and not charged to the losing party. I do not agree. Time spent on legal research is a normal disbursement included in cost awards, and the fact that the research was done by computer, which is now the norm, is no reason to deny those costs to the successful party.
An application for a Norwich Order that the respondent disclose confidential sources was dismissed. In fixing costs, on a partial indemnity basis, against the applicant, Edward P. Belobaba J. said:
¶ 5 I reviewed the respondents' costs outline for any obvious aberrations and found none. The costs outline provides a line-by-line tally that accords with the hourly rates recommended by the Rules Committee as set out in Rule 37 and contains a clear explanation of all the legal work that was done on this application. The only items that merit specific comment are these: I would not allow a disbursement charge for "electronic legal research" any more than I would allow a disbursement charge for subscribing to the O.R.'s; also, in my view, the charge for photocopying is somewhat excessive. I would reduce the latter to $3500 and the overall disbursements to about $10,000. The total costs request therefore falls to around $245,000.
Plaintiffs obtained judgment for $375,000 damages arising out of a motor vehicle accident. In fixing costs against the defendants on a partial indemnity basis, John C. Murray J. said:
¶ 61 Given the extraordinary docketing activity of Ms. Chittley-Young, Mr. Kenney and their law clerks, it is difficult to understand what added value could possibly be provided by Taran Virtual Associates Inc. with respect to legal research in preparation of a factum. In my view, it is reasonable to assume this work is duplicative of work done by lawyers or their clerks and therefore excessive. Similarly, it is impossible to ascertain the value of the services rendered by Nolan Paralegals because there is no detail provided which would help explain the need for such services. In my view, both of these claims are unsupportable. Certainly it is not reasonable that the defendants be asked to pay them.
In fixing costs of the defendants' successful motion for summary judgment, Edward P. Belobaba J. said:
¶ 9 I do, however, take issue with two of the items on the disbursements side: I would reduce the $622 in photocopying charges to a more cost-based charge of say $300; and I would delete the charge for "research fees". As a matter of principle, I do not find it proper or appropriate for lawyers that are 'learned in the law' and are already charging hefty hourly rates, to charge additional fees for Quicklaw or other legal research. I would therefore reduce the disbursements claim to an overall $1500.
In fixing the the plaintiffs' substantial indemnity costs of a contempt motion against one Gordon Steventon, Lois B. Roberts J. said:
¶ 20 Although this matter required the expertise of one senior counsel, it is unclear to me why the participation of two other senior counsel was necessary. Further, while it is desirable that work be appropriately delegated to more junior counsel to reduce costs, in reviewing the dockets provided, there seems to be some duplication between the work undertaken by Mr. Silver and that carried out by his associate, Ms. Zagar. Moreover, the more than 46 hours spent by Ms. Zagar to conduct legal research and draft and revise legal memoranda and facta are more than Mr. Steventon should be expected to pay for a motion of this kind. ...
In fixing the costs awarded to defendants on their motion for particulars, Michael G. Quigley J. said:
¶ 22 Finally, I do not regard the disbursement of $1,003 for "online searches and research" to be a disbursement that ought to be chargeable to the plaintiff as a disbursement of the defendants. It seems to me that doing legal research and providing legal opinions is what law firms do. Knowing the researching the law in order to be in a position to advocate on behalf of their clients is what lawyers charge fees for. I do not consider it acceptable to effectively increase the quantum of fees that would otherwise be chargeable against the plaintiff for this motion by making him pay for a $1003 disbursement on account of online legal research. ...
The Greater Toronto Airports Authority applied for judicial review of a grievance arbitration award. Although the application was allowed, in part, Katherine E. Swinton J. (Emile R. Kruzick and Alison Harvison Young JJ. concurring) said:
¶ 71 The GTAA also takes issue with the fact that the arbitrator engaged in his own legal research and relied on cases which had not been cited to him. I see no denial of natural justice in the fact that the arbitrator updated the case law presented to him. Whiten, Wallace and Weber were all discussed in the Seneca College and Santoro cases presented to him, and they were readily available to counsel for the GTAA.
¶ 72 The fact that the arbitrator updated the law by looking at the more recent Fidler case does not constitute a denial of natural justice. Bora Laskin, sitting as an arbitrator, stated in Re United Electrical, Radio and Machine Workers of America, Local 514 and Amalgamated Electric Corporation (1950), 2 L.A.C. 597, that arbitrators, like judges, could research questions of law and consider cases not cited by the parties (at p. 598).
¶ 73 It might have been preferable had the arbitrator asked the parties for submissions on Fidler, given its importance. However, the GTAA was reasonably informed of all the remedial issues in dispute, and its counsel could have found Fidler with reasonable diligence. Along with the union, the GTAA consented to the arbitration board dealing with remedy along with the merits, rather than bifurcate the hearing. In my view, the arbitrator did not deny natural justice to the GTAA by engaging in further legal research.
In assessing costs against an unsuccessful appellant, John A. McQuaid J.A. (David H. Jenkins C.J.P.E.I. and Michele M. Murphy J.A. concurring) said:
¶ 6 ... It would be reasonable for the appellant to expect, in the circumstances of this case, that the respondents would require the services of one senior counsel to carry the appeal as well as a junior counsel to assist with legal research, factum preparation and other related services.
¶ 8 With respect to the disbursements, I would reduce the disbursement for electronic legal research because of the failure to provide supporting documentation other than an affidavit of the Accounting Administrator in the office of respondents' counsel. I would also reduce it having regard to the fact that much electronic legal research can now be accessed free of charge on internet cites like CANLII.
At trial, Griffin (the Deputy Director of Polic Services) had obtained judgment against the City and Arsenault (the Director of Police Services) for malicious prosecution; his claim against Murphy (the City's Chief Administrative Officer) and Poirier (a police officer) was dismissed. The City and Arsenault's estate appealed, but the appeals were dismissed. In assessing the Griffin's costs against the City and Arsenault, and Murphy and Poirier's costs against Griffin, David H. Jenkins C.J.P.E.I. (John A. McQuaid and Michele M. Murphy JJ.A. concurring) said:
¶ 84 There is a claim for "Quicklaw Research" of $9,783. This claim is disproportionate to the amounts claimed by the opposing parties for electronic research -- the City $760., and Griffin $906. -- and no explanation is provided. This claim is subject to some adjustment. Electronic research could be either law firm overhead as part of library expense or an assessable disbursement. All or part of a claim may be shown to be reasonably necessary to advance a party's position, as opposed to overhead, on the basis that it saves lawyer's time and is thereby cost-effective for the particular litigation file. However, to qualify a claim like the one in this case there would need to be some support through provision of some information upon which the reasonableness of the expenditure could be scrutinized. In any event, it can be inferred that in this case respondents' counsel reasonably incurred some electronic research. Upon referring to the expenditures of the other parties, and in the absence of further supporting information, I would allow a disbursement for electronic research of $906.
In assessing costs against an unsuccessful appellant, Bruce Preston, Assessment Officer, said:
¶ 21 The Appellant's predominant submission concerning disbursements is that there is no evidence as to how they relate to this appeal and the disbursements are not explained by the affidavit of Ms. Mason. The Appellant has no objection to process server fees, however, concerning Quicklaw, the Appellant submits that there is no evidence to indicate for what or how it relates to this appeal.
¶ 23 Finally, concerning Quicklaw the Respondent submits that the Affidavit of Ms. Mason attests to the fact that the charges related to the appeal, were charged to the Respondent, are allowable costs and are not overhead. Counsel further submits that the charges are low and reasonable given the need for legal research in the appeal.
¶ 25 Having regard to Quicklaw, given the amount of the disbursement, I am satisfied that the evidence contained in the Affidavit of Cynthia Mason is sufficient. To require further particulars for a disbursement of less than $45.00 would be more costly than the disbursement itself. Therefore, the disbursement for Quicklaw is allowed as claimed.
In fixing the costs awarded to the plaintiff on a partial indemnity basis on an unsuccessful motion for summary judgment by the defendant, Richard A. Lococo J. said:
¶ 8 The City argued that the fair and reasonable partial indemnity cost award in this case would be in the range of $40,000. According to the City, the partial indemnity hourly rates claimed by Kingspan's counsel were too high in light of the normal maximum rates set out in "Information for the Profession" issued in 2005 by the Costs Subcommittee of the Civil rules Committee. The City also argued that the preparation time claimed was excessive (over 135 hours for junior counsel and over 48 hours for senior counsel) and, and that a disbursement of in excess of $2,500 for legal research should be disallowed as being more properly treated as part of counsel's overhead.
¶ 9 I agree with Kingspan's counsel that the disbursement in question should not be disallowed, since the amount in question was actually expended and charged to the client for electronic research, and appears to me to be reasonable in the circumstances. As well, even though Kingspan's offer to settle was not made in compliance with subrule 49(2), I am entitled to take that offer into account in setting the amount of partial indemnity costs payable by the City.
¶ 10 However, I also agree with the City's counsel that, while Kingspan counsel's preparation time (including extensive legal research) may have been of benefit to Kingspan, it was not reasonable in this case that the City pay these costs without adjustment given the level of time spent by both junior and senior counsel. In addition, while I do not agree with the City's counsel that the maximum rates set out in guidance provided by Costs Subcommittee should effectively be treated as absolute, I am not persuaded that rate charged for senior counsel beyond that maximum rate set out in the guidance has been justified by Kingspan in this case (although I note that the rate charged for junior counsel was below suggested maximum rate and was, in my view, appropriate in this case). ...
A jury awarded damages of $370,000.00 to the plaintiff for sexual assault. In fixing costs against the defendant on a substantial indemnity basis, Darla A. Wilson J. said:
¶ 20 Mr. Koven, a solicitor of 14 years' experience, claims 583 hours at a rate of $300.00 per hour. The student claims 450 hours for a sum of $40,518.00. It is not clear from the dockets how these hours were spent but it appears that the student time was spent on reviewing transcripts and conducting research. It may be the case that some of the time was spent in furtherance of the issues in the other action, which resulted in the defendant Weig having certain of his funds frozen. The docket entries do not elaborate on the nature of the work that was done.
¶ 21 As I have indicated, this case did not contain complex legal issues so it is difficult to understand how this work was necessary. Numerous hours, for example, are docketed for "medical research", research on jury addresses, research on Mary Carter Agreements, while other entries simply indicate "legal research".
¶ 22 In my view, both of these amounts are excessive given the nature of this action. Further, the amounts are far beyond what the defendants could reasonably have expected to pay in costs following a 7 day trial.
The defendants' motions to dismiss or strike the claim without leave to amend had been dismissed, subject to one exception. In fixing the plaintiff's costs on the application, Edward P. Belobaba J. said:
¶ 12 ... I would also award $9712 in disbursements. (I deleted the $2104 charge for "legal research." I remain of the view that if lawyers already charge a substantial hourly rate for their knowledge and experience, an additional charge should not be added for something called "legal research.")
Plaintiff was awarded damages of $34,399 plus interest, and costs on a partial indemnity basis. In fixing the costs, Edward P. Belobaba J. said:
¶ 7 The photocopying costs will be reduced from $777 to $300; the tabs and binding charge of $319 is reduced to $100; the legal research and Quick Law costs of $185 are deleted outright: I have never understood how lawyers "learned in the law" and charging already very high hourly rates for their legal knowledge and experience can charge clients further amounts for additional legal research.
Plaintiff was awarded damages of $314,834 for personal injuries, and costs on a partial indemnity basis. In fixing the costs, David G. Price J. said:
¶ 152 Ivanhoe complains that in the lead-up and during the trial, Mr. Pickard, who was called to the California Bar in 1981 and to the Ontario Bar in 1987, expended 31.3 hours on research, consisting of 2.5 hours on late service of expert reports, 1 hour on spoliation, 2 hours on leave to call more than three experts, 3 hours on late service of expert reports, 2.5 hours on admission of settlement agreements from another action, .5 hours on res ipsa loquitur in product liability cases, 0.4 hours on the admissibility of spontaneous declarations, 1 hour on third party beneficiaries, 7.5 hours on striking a jury, 4.5 hours on deducting collateral benefits, 6 hours on costs and 0.4 hours on using a discovery transcript at trial. During the same period of time, legal research was also being carried out by Mr. Dick, who was called in 2002. His rate, on a partial indemnity rate is claimed at $100.00. Ivanhoe submits that it is unreasonable to ask the Defendants to pay a counsel with over 20 years of experience in this jurisdiction when someone was clearly available to carry out the research at a more reasonable rate.
¶ 176 As noted above, Ivanhoe complains that in the lead-up and during the trial, Mr. Pickard expended 31.3 hours on research. I have reviewed the issues researched in the context of those which arose during the trial. I am satisfied that the research concerned relevant subjects, was not excessive in relation to any of the issues addressed and was appropriately delegated by Mr. Cannings to Mr. Pickard. This time will be allowed.
Firm Capital Mortgage Fund Inc. was awarded costs on a partial indemnity basis on its motion to discharge Federated Contractors Inc.'s lien. In fixing the costs, Master Carol A. Albert said:
¶ 14 Disbursements: Federated challenges several disbursements claimed by Firm, suggesting that the photocopy charge of $1,502.15 is "astronomical", that courier charges of $508.95 "seem unwarranted" and legal research at $86.78 "appears inexplicable". I presume that these disbursements are being charged at rates that are within the tariffs. If that assumption is wrong then I expect Borden Ladner Gervais to adjust its disbursement account accordingly. Recognizing the volume of materials prepared and served, I accept the disbursements for photocopying and courier charges. As for legal research, where a law firm purchases legal research engines on a monthly basis it is appropriate to apply a charge to the files using the service.
Beneteau was awarded support from her husband, Young, and costs "on a much greater scale than only partial indemnity." In fixing the costs, Grant A. Campbell J. said:
¶ 23 I am unfamiliar with the apparent new process of litigation lawyers delegating or "farming-out" the research facet of their preparation for trial. My ignorance of that practice is not to suggest, however, that it is inappropriate or wrong in any respect. Indeed, Tariff item 35 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 suggests that an expense for matters that are "reasonably necessary for the conduct of the proceeding" may be recoverable.
¶ 24 In Moon v. Sher, supra, the issue of disbursements for the use of Quicklaw to research the law was addressed. At para. 39 the Ontario Court of Appeal identified that:
It would seem, therefore, that amounts disbursed for Quicklaw services ... 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.
¶ 25 I would follow the direction of the higher court and expand their allowance for Quicklaw services to include contracted-out research by another lawyer, since both disbursements seems analogous to me. If Ms. Madsen had not done the research, then Ms. Barr would have had to have done it herself.
¶ 26 However, Mr. Burns' objection is reasonable to that part of the costs claim that includes Ms. Barr spending significant time "reviewing the research." That time seems to me to be a doubling of an expense for which Mr. Young should not be held responsible. That "review" is similar to the expense charged (and sought) by counsel (which I would disallow) to regularly "review the file" and to hold intra-office meetings with her law clerk to organize the file and to give direction for next steps.
¶ 27 I also have some difficulty with the flat fees charged for research (as reflected by Ms. Madsen's lump-sum bills) without some indication of Ms. Madsen's hourly rate or the actual time she spent researching. I assume that the "research" included much more than simply plugging a few key words into a Quicklaw search. As Moon v. Sher identifies, the onus rests on Ms. Beneteau to satisfy me that the cost of research is "not excessive." As submitted, how could I come to that conclusion?
¶ 28 Regarding Mr. Burns' argument that lawyers must be "presumed to know the law" and that no fee or disbursement should be allowed for either Ms. Barr or Ms. Madsen's efforts to conduct research since "legal research provides knowledge not for just one file but for all future files," I am unpersuaded by both of those points. Each case that a lawyer takes on possesses unique characteristics and issues and requires that counsel find out whether those particular issues have previously been determined in this or any other related jurisdiction.
In refusing to re-open a voir dire, and dismissing a motion to prohibit the Crown from using a video statement, Robert A. Clark J. said:
¶ 181 As for the written argument, I suggested that, in order for Mr. Scully to be able to direct his energies to preparing the list of witnesses, co-counsel, Mr. Zbarsky, could perhaps see to preparing the argument. Mr. Scully responded that "Mr. Zbarsky [was] not here to do the legal research. Mr. Zbarsky [was] here as co-counsel." I indicated, in response, that the function of trial counsel includes researching points of law that arise in a case in order to assist the court in the just and proper resolution of those issues.
Lundbeck moved to strike an affidavit. The application was dismissed, but was allowed on appeal. On further appeal, however, the application was again dismissed. In assessing Apotex's costs, Parent, Assessment Officer, said:
¶ 12 The appellant claims $1,287.38 in computer searches to prepare for the appeal and cross-appeal. It was submitted that this was necessary to address all developments of the law on the numerous issues raised by this matter. With regard to the Joint Book of authorities prepared by the appellant, the respondents submit that all the electronic versions of the case law to be included on their behalf were submitted electronically. Consequently, Apotex did not have to incur any costs with respect to the respondents' authorities and as such, should not be allowed to claim them. Apotex did not submit any details to assist in determining the relevance and reasonableness of the computer time charges. On this issue, I share my colleague's views in Englander v. Telus Communications Inc., 2004 FC 276 (F.C.):
A result of nil dollars at assessment would be absurd given that I think the Respondent's counsel had an obligation to carry out research for the assistance of the Court in resolution of the issues. However, the Applicant is not obligated to pay for the costs of irrelevant research.
I have had the opportunity to examine the authorities submitted to the Court. Other than the number of cases submitted in the Joint Book of authorities, not much relevant information can be retrieved from Mr. Lederman's affidavit and the written submissions on this matter. Considering the involvement of the respondents in the preparation of the Joint Book of authorities and the paucity of information, I am not clear on the relevancy or the specific amount of research done. Therefore, I allow the reduced amount of $750.00 for computer searches.
Abbott applied under section 55.2 of the Patent Act, R.S.C. 1985, c. P-4, and section 6 of the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, for an order prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex for the production of certain capsules. The application was dismissed. In assessing Apotex's costs, Parent, Assessment Officer, said:
¶ 57 The applicants argue that the respondent Apotex should not be permitted to make full recovery of QL Searched / Computer time charges since no details were provided to determine relevance and reasonableness. The respondent Apotex submits that costs for on-line computer research should be allowed since actual disbursements were charged to the client as established in the affidavit in Andrew Brodkin and considering the complexity of the legal issues involved, the costs are reasonable. On the issue of research charges, I share my colleague's views in Englander v. Telus Communications Inc. (2004 FC 276 (F.C.)):
A result of nil dollars at assessment would be absurd given that I think the Respondent's counsel had an obligation to carry out research for the assistance of the Court in resolution of the issues. However, the Applicant is not obligated to pay for the costs of irrelevant research.
I have had the opportunity to examine the authorities submitted to the Court during the course of this matter along with the invoices attached to Mr. Brodkin's affidavit. I agree that not much relevant information can be retrieved from the billing to the client other than for the approximate time the actual researches were done. With this meagre information, it is not clear to me that all of the research was relevant to the matters that were before the Court and for which costs had been allowed. Therefore, I allow the reduced amounts of $1,850.00 (QL search) and $110.00 (Computer time).
Nichols lost his leg when his motorcycle hit a telephone pole. He retained the defendant solicitors, who obtained a small settlement from the municipality. Nichols then commenced an action against the solicitors for not having commenced an action against the telephone company. This action was dismissed. In dismissing Nichols' appeal, Peter D. Lowry J.A. (Lance S.G. Finch C.J.B.C. and Mary E. Saunders J.A. concurring) said:
¶ 7 The solicitors did consider naming the telephone company. They took the view, however, that the company owed him no independent duty of care and could not be held liable. They considered the case to turn on the reason Mr. Nichols left the road. The pole had not caused the accident but only aggravated the injuries he suffered. They conducted no legal research into the liability of the telephone company and undertook no investigation directed toward making a case against it save that they did retain two expert witnesses who offered opinions concerning the accident site. The opinions included the suggestion the pole, which did not carry any lines itself on the south side of the road but served only as a support for lines run on poles on the north side around the curve, was not necessary and need not have been where it was.
¶ 20 The first ground is the judge erred in concluding the defendant solicitors did not fail to meet the requisite standard of care. Mr. Nichols contends that by failing to conduct legal research that would have shown the duty owed by the telephone company to be other than what they wrongly thought it was, the solicitors were negligent. He relies on Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at 208-209, 31 D.L.R. (4th) 481, in particular, the passage at 209 quoted from Jackson and Powell, Professional Negligence (London: Sweet & Maxwell, 1982) at 145-146:
Although a solicitor is not "bound to know all the law," he ought generally to know where and how to find out the law in so 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.
¶ 26 In a case of this kind, the court is required to essentially conduct a trial within a trial to the extent possible: the first to determine whether the solicitor has been negligent in respect of the litigation undertaken; the second to determine, if so, what loss the solicitor's negligence has caused the client. ...
¶ 36 Given the absence of error in respect of the standard of care, it follows the judge's conclusion that there was no case to be made against the telephone company is sound. It then becomes unnecessary to consider her conclusion with respect to the negligence of the defendant solicitors because, even if they were in breach of the duty they owed to Mr. Nichols in respect of the litigation, he suffered no loss in the result.
In fixing the father's costs in a custody and access hearing, Patrick J. Flynn J. said:
¶ 26 I would only disallow Mr. Ballantyne's claim for legal research. Counsel is presumed to know the law. ...
Sarazin and others were charged with moose hunting in Algonquin Park, contrary to the Fish and Wildlife Conservation Act, S.O. 1997, c. 41. They were acquitted but, on appeal, a new trial was ordered. Sazarin and the others applied for an order prohibiting the Ontario Court of Justice from proceeding with a new trial. The Superior Court refused to grant a general order, but ordered only that a particular Justice of the Peace not be the trial judge. Concerning the argument that the Crown had declined to answer defence requests that he research and disclose the history of governments' justification for enacting natural resource laws which impact aboriginal rights, W.J. Lloyd Brennan J. said:
¶ 47 As to justification for the legislation, that is not a matter for disclosure; rather for legal research. The Crown is under no duty to perform that research for the defence.
An action for wrongful dismissal was dismissed. In fixing the costs of the defendant, Casimir N. Herold J. said:
¶ 42 (QL) There are a couple of items themselves in the draft bill of costs which trouble me -- actually really only one combined, and it is the total of 90 hours for legal research and summarizing the plaintiff's examination for discovery transcript by two law students. It is all well and good to make sure that law students get a good articling period and that they learn lots of things, but charging $60 an hour for 90 hours, in a firm which specializes in wrongful dismissal litigation, involving issues that are fairly well dealt with in the authorities is a bit on the rich side in my humble opinion. I would have tinkered somewhat with that number.
¶ 47 (QL) So my feeling is that the partial indemnity costs being sought, but for some tinkering with respect to 90 hours of research, about $5,400 worth of research may be a little bit unnecessary, I am not saying it was not done, I have no doubt -- it probably was, but certainly not such that it should be laid at the feet of the plaintiff; I would have cut it back and I am going to cut the plaintiff's partial indemnity costs in half for these two issues that I have discussed with respect to the non-disclosure of photocopied documents in the possession of a witness who appeared on discovery but was not called at trial and for the J.W. incident not being reported to the proper channels which could have changed the whole of the relationship between and amongst the parties. Doing that -- on a rough basis I would take some $3,000 out of the sub-total, leaving us about $73,700, approximately $74,000 divided by two is $37,000, I'm going to fix the fees at $37,000, plus GST where applicable, plus the disbursements, which I accept as being accurate.
York Condominium Corporation No. 46 took proceedings for the sale of the condominium unit of Auger and Singh-Ryder. The grounds were non-payment of common area expenses and maintenance fees. When Auger and Singh-Ryder (by her agent, McDowell) gave notice that they intended to rent the unit, the condominium corporation obtained an injunction. After the sale of the unit, the corporation claimed the right to deduct its legal expenses from the proceeds of sale. Auger took out an appointment for the assessment of the bill of costs, and Assessment Officer Moquin reduced the fees. Julian Heller and Associates, the lawyers, moved to oppose the confirmation of the report and certificate of assessment. In reversing parts of the assessment, Jane E. Kelly J. said:
¶ 10 (QL) To be successful, the party opposing confirmation of the Assessment Officer's Report and Certificate needs to establish that:
(i) the Assessment Officer made some error in principle;
(ii) there was some excess or absence of jurisdiction; or
(iii) there was some patent misapprehension of the facts.
In addition, where the award is not satisfactory on all of the evidence, it is open to the court to vary the award. (See: Jordan v. McKenzie (1987), 26 C.P.C. (2d) 193 (Ont. S.C. H.C.J.) at para. 10.)
¶ 12 (QL) The bulk of the argument before me dealt with the reduction of legal research and Mr. Rideout's attendance at two motions with Mr. Heller. Counsel for Mr. Auger submitted that the Decision of the Assessment Officer regarding legal research was sound because:
(a) JHA is a law firm that routinely acts in enforcement proceedings regarding condominiums;
(b) The overall time spent on the file more than compensated JHA for the work completed on the file;
(c) Assessment Officers are loathe to award research time unless the solicitor shows that it was complex;
(d) Research will benefit other clients and the firm in the future; and,
(e) The onus is on the solicitor to show that there was a need for the research.
¶ 22 (QL) As a result of this "bizarre run", legal research had to be done and facta had to be produced. Additional work was required because the opposing party was self-represented and JHA needed to ensure that all proper facts and legal authorities were presented to the Court.
¶ 24 (QL) Despite the irregularity of the proceedings in this matter, the Assessment Officer found that "having two counsel [Mr. Heller and Mr. Rideout] prepare and attend at the same motions was not necessary". The Assessment Officer then stated:
• ... neither motion was complex enough to warrant two counsel. There will be a reduction in Mr. Rideout's time to reflect this, although he will be given credit for drafting the supporting material used and other work performed in relation to these motions.
• Mr. Rideout docketed a total of 23.3 hours for research. I find this to be excessive for a law firm that does mainly this type of work. A client should not have to pay for a lawyer to educate himself about the law. Mr. Rideout's time will further be reduced to account for this.
Thereafter, the Assessment Officer reduced the research time of Mr. Rideout on the JHA accounts to zero.
¶ 25 (QL) As per Jordan v. McKenzie, supra, I am of the view that the reduction of the time spent by Mr. Rideout on research and attending the two motions is satisfactory [sic] on all of the evidence. The Assessment Officer's reduction of these fees is not consistent with her Reasons for Decision on Assessment ...
¶ 26 (QL) Accordingly, and although JHA may routinely act for condominium corporations in enforcement proceedings, this was not a standard proceeding. The conduct of Mr. Auger and Mr. McDowell, made the proceeding more complex. Because the matter was so unique, it may be that the research is not standard and as such, it may not benefit other clients or the firm in the future. The onus was on the Mr. Heller to show that there was a need for the research. It would appear from the Reasons for Decision of the Assessment Officer that the research was required and more than warranted in the circumstances.
¶ 27 (QL) The Assessment Officer, herself, parsed out and denied the time spent on legal research and Mr. Rideout's time spent at the two motions with Mr. Heller. Accordingly, it cannot be said that the overall time spent on the file more than compensated JHA for the time spent on the file.
¶ 28 (QL) Based on all of the above, I am of the view that the Assessment Officer did not make an award that was satisfactory on all of the evidence. She should have allowed for the costs of the research and the attendance by Mr. Rideout at the two motions that he prepared and researched.
Plaintiffs obtained judgment at trial for damages arising out of a mine explosion, but this was reversed on appeal. In assessing the appellants' costs, Peter T. Costigan J.A. (Marina S. Paperny and Frans F. Slatter JJ.A. concurring) said:
¶ 35 (QL) A disbursement is allowed for faxing, photocopying, and printing in the amounts set by the trial judge. Disbursements for IT services, computer and other research, and access to computer data bases are not allowed for the reasons given by the trial judge.
¶ 36 (QL) CAW retained Professor L. Klar to provide a legal opinion on the file, and claims his charges as a disbursement. Legal research needed on a file is subsumed in the taxable fees that are awarded to the successful party, and payments for legal opinions are not a proper disbursement.
The trial judge's decision with respect to costs had been:
In assessing the plaintiffs' costs, Arthur Lutz J. had said:
¶ 165 (QL) It is clear from the Fullowka Plaintiffs' disbursement enumeration that some items claimed are properly viewed as subsumed in the fees recoverable and therefore should be disallowed. I reference Slatter J.'s comments in Hansraj v. Ao (2002), 314 A.R. 283 at para. 17, 2002 ABQB 772:
A disbursement must generally be an amount payable to a third party, must be an expense specifically related to the file in question, and must be something over and above the general overhead expenses of the lawyer. A disbursement is not allowed if it is merely a disguised form of fee for the lawyer, as those are to be taxed in accordance with the Schedule.
and McMahon J.'s comment in Murphy Oil Canada Ltd. v. Predator Corp., [2005] A.J. No. 721, 2005 ABQB 134 at para. 36:
Predator objects to the Plaintiffs' claims for costs for electronic research. The weight of authority in this province is that electronic research costs are not an allowable disbursement because they are contemplated under the fees portion of Schedule C: Pauli v. Ace Ina Insurance, (2003), 336 A.R. 85, 2003 ABQB 600, varied on other grounds (2004), 354 A.R. 348, 2004 ABCA 253; Moser v. Derksen, [2003] A.J. No. 231 (Q.B.); Westline Oilfields Construction Ltd. v. Petromet Resources Ltd., [2002] A.J. No. 1333, 2002 ABQB 934; and Leadbeater v. DCS Systems Ltd, [2004] A.J. No. 954 (Master). I agree.
¶ 166 (QL) In Strandquist v. Coneco Equipment, [2000] A.J. No. 554, 2000 ABCA 138 at para. 7, the Court said:
Most courts do not allow a fee for this without special circumstances, largely because it is a substitute for lawyers' work and so in theory already covered by the other fee items in Schedule C. ...
¶ 167 (QL) The items that are disallowed on this basis are:
Research $5,401.44 IT Services $11,028.25 Computer Research $4,026.68 E-Carswell $5,583.86 Quicklaw $112.80 $26,153.03
The plaintiffs applied for leave to appeal an order, but abandoned the application when they realized they had an appeal as of right. In fixing the defendants' costs, David R. Aston J. said:
¶ 5 (QL) The test has been well described in jurisprudence. The facts in this particular case were not, for the purposes of the motion for leave to appeal, particularly complicated. I am also of the view that when lawyers or law students spend time on legal research, it is not something that necessarily should be passed on to the other side, certainly in whole or even in some circumstances in part. There are items that are just part of the cost of doing business. Some of those include photocopies and other things that are part of the overhead of the law firm and included in an hourly rate that is being charged by those who are billing out on an hourly basis.
Buxar commenced an action in Ontario for a declaration that she was the lawful owner of an engagement ring. As related proceedings were pending in Michigan, Lukich obtained an order for a stay on the basis that Ontario was forum non conveniens. In fixing the costs, Master L.A. Pope said:
¶ 70 (QL) In reviewing Lukich's Cost Outline and the hours claimed, it is my view that his claim for $6,205.72 is excessive given that no cross-examinations were held and the time to argue the motion was approximately two hours. Therefore I have reduced the amount for fees to $2,750.00 including counsel fee for appearance. Regarding the disbursement claimed for legal research charges to Carswell, the Ontario Court of Appeal in Moon v. Sher (2004), 246 D.L.R.(4th) 440 held that a successful party is entitled to reasonable costs for facsimile, stationary, postage, courier and on-line legal research if they have been charged to the client, are not excessive, and do not fall within standard office overhead. Lukich did not provide any evidence that the Carswell charges were charged directly to the defendant's file; therefore, I cannot allow this disbursement. ...
A former wife was awarded support. In fixing her costs, John dePencier Wright J. said:
¶ 20 (QL) In coming to this figure I have considered the following: ...
(b) Legal research databases: the sum of $1686 is claimed for the use of legal research databases. There are several objections to this claim. Statutes and many cases are available free from CanLii or the Court of Appeal website. While accepting that some charges for access to such databases are permissible, maintenance of a library is part of the overhead of a law office. I allow $400 under this heading.
In fixing the costs of both the plaintiff and the defendants on a variety of motions by each, J.Bryan Shaughnessy J. said:
¶ 23 (QL) I intend to review individually each bill of costs submitted by the Defendants and the Plaintiff. The test to be applied is whether the amounts claimed are reasonable and necessary. I do accept that the importance of the issues warranted the involvement of senior counsel. I also observe that for the most part the proceedings were appropriately staffed throughout i.e. junior counsel preparing materials and students-at-law conducting legal research. However, as will be detailed herein I have not allowed a junior counsel fee on the motions.
Suprun obtained an order against Bryla (1) declaring that a structure between their two cottage properties on Lake Erie was a "fence" within the meaning of a Norfolk County bylaw; and (2) restraining, pursuant to s. 443 of the Municipal Act, R.S.O. 1980, c. 302, breaches of the bylaw's maximum height requirements for fences. In fixing Saprun's costs, Joseph W. Quinn J. said:
¶ 43 (QL) The bill of costs reflects time spent by Mr. Hitchon and Mr. Portelli prior to the commencement of the proceedings, advising the applicants as to their rights, as well as the time of a student who carried out legal research. Mr. Cline submits that these services are not properly included in the bill of costs, as they pre-date the issuance of the notice of application.
¶ 44 (QL) Although there may be cases where it would not be appropriate to consider such services in a partial-indemnity bill of costs, they are properly included where they directly relate to investigating and advising a client as to the likely success of the proposed litigation and to preparing, for example, supporting affidavits. Not only is liability for those costs within the reasonable expectation of an unsuccessful litigant but, to some degree, the ability to recapture those costs discourages the sue-first-and-think-later approach to litigation.
¶ 45 (QL) Here, the pre-litigation services consisted of advising the applicants and preparing for the commencement of proceedings. Therefore, I think that they are allowable when determining partial-indemnity costs.
¶ 46 (QL) As I have already said, the bill of costs includes legal research performed by a law student. Mr. Cline argues that the time of students should be subsumed in the hourly rate of counsel.
¶ 47 (QL) Where a law student performs work that falls within the ambit of services rendered by a lawyer, the lawyer is entitled to charge the time of the student. The issues on this application required legal research and it is entirely appropriate for that work to have been conducted by a student. Legal research is not part of overhead, as is, for example, filing or delivering documents. As well, legal research is a service that benefits the client and not merely a learning experience for the student.
A father resident in Kentucky obtained an order, pursuant to the Convention on the Civil Aspects of International Child Abduction, CTS 1983/35, and s. 46(2) of the Children's Law Reform Act, R.S.O. 1990, c. 12, in respect of a child removed by his mother to Ontario. In fixing the father's costs, Patrick J. Flynn J. said:
¶ 8 (QL) Regardless of the hourly rate which is properly chargeable by the Applicant's solicitor prior to and after the delivery of the Offer to Settle, the time spent on the activities claimed is excessive. For example, she claims about 15 hours to review the Respondent's material. That seems over the top to me. She claims about 29 hours for drafting her factum and submissions. No doubt that has something to do with the fact that the she has no staff and likely includes her own time at her hourly rate for word processing and other clerical or secretarial tasks. These are but two examples of her excessive time claims. Ms. Wilmot has also claimed 12.5 hours for legal research, a task which has been generally disallowed as non-assessable (on the theory that solicitors are presumed to know the law).
Plaintiff successfully claimed compensation from its insurer for losses suffered at its pickle processing plant as a result of a power blackout. In fixing the plaintiff's costs, David M. Brown J. said:
¶ 10 (QL) As to Caneast's claim of $1,578.46 for disbursements, Lombard takes issue with Caneast's inclusion of $274.19 for Quicklaw research, contending that it should be treated as overhead, not a recoverable disbursement. While today computer-assisted legal research is the norm, practices vary as to whether its costs may be charged as a disbursement to a client. Some clients permit such a charge; others, especially corporate and institutional clients engaged in frequent litigation, often require their lawyers to treat such costs as a matter of overhead. It would be useful for parties to indicate in any cost submissions whether charges for computer-assisted research were billed to clients. In the present case, I think I can reasonably proceed on the basis that since Caneast included such costs in its substantial indemnity claim, the costs of computer-assisted research were billed to the client. I therefore will permit recovery of the amount.
The plaintiffs (represented by Charney, a lay family member) obtained damages in Small Claims Court for the loss of three mature trees that occupied the boundary between their property and that of the defendants. J.D. Searle Deputy J. said:
¶ 28 (QL) Although Mr. Chmarney is an intelligent person he is a layman and not a lawyer and was unable to respond to the case law. In argument he described a feeling of being "blind-sided" by the case law. In an effort to reduce the imbalance the court, as is often required in this court, reserved judgment to do its own legal research.
The defendant, Conrad Black, obtained an order quashing a witness summons which purported to be in aid of a Mareva injunction application. In fixing the costs of the application, Colin L. Campbell J. said:
¶ 11 (QL) The item of $9,616.96 for photocopies is worthy of mention. In this day and age, cases can be provided by CD with the actual references relied on either quoted in the factum or included in a short compendium. When one considers the alternatives, a profit centre photocopy rate of $0.25 a page or more that gives rise to a claim of nearly $10,000.00 must be considered excessive.
¶ 12 (QL) Likewise, a disbursement of $3,004.53 for on-line legal research must be regarded as excessive when the students working on the research are being charged out at $150 per hour.
Plaintiff sought damages in connection with the purchase of a new home. In dismissing the defendants' application for summary judgment, Robert A. Clark J. said:
¶ 20 (QL) Turning, then, to question of what is a reasonable award for costs, the motion was not particularly complex, in my view. Although there was relatively little authority directly on point, the principal issue was fairly straightforward. Plaintiff's counsel, however, submits that the motion required "extensive case law research". If by "extensive" counsel means time consuming, I note that of the time docketed to the file, more than 25 hours in total, less than one third is attributed to research. The bulk of the time attributed to research, namely, 4.5 hours, was billed to the junior lawyer on the file at the rate of $150 per hour. Of Mr. Kelly's total time of 20.7 hours, billed to the file at $300 per hour, only 2.6 hours was spent on research, according to the bill of costs submitted. On the other hand, if by "extensive" counsel means exhaustive, I note that in coming to my decision on the motion I relied on a number of authorities, that I considered to be on point, that counsel did not provide to the court; rather, I discovered them myself by a very rudimentary computer search. Accordingly, on either definition, I reject the proposition that the motion required extensive legal research.
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.
Nelligan, O'Brien, Payne LLP was awarded partial indemnity costs againsst its client, Fontaine, for costs thrown away as a result of attending an assessment hearing. In assessing those costs, Robert J. Smith J. said:
¶ 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.
In assessing the costs Condo's unsuccessful application for judicial review of a decision of the National Parole Board, Stinson, Assessment Officer, said:
¶ 3 [The Appellant's Position] ... Online computer research charges are not permissible disbursements and were excessive, having been incurred as individual charges as opposed to the less costly monthly flat rate regardless of the number of searches.
¶ 9 My decision in Englander v. Telus Communications Inc., [2004] F.C.J. No. 440 (A.O.) confirms that I routinely allow costs for online computer research. However, that process includes consideration of whether all, none or only part of the research was reasonably necessary or irrelevant, i.e. some of the searches may extract cautionary or secondary authorities, keeping in mind the professional obligation of counsel both to the client for diligent representation and to the Court for as much assistance as reasonably possible on all aspects of the law potentially affecting final adjudication on the substantive issues of the litigation. ...
¶ 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 (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 (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, 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 (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 (Small Claims Ct.); see also Parsons v. Canada Safeway Ltd., 1995 CanLII 942 (BC S.C.), [1995] B.C.J. No. 1947 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, 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, 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;
(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.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.
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 (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, 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; 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; 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, 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.
¶ 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.
Englander applied for an order that Telus correct its business practices, alleging that Telus had violated the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5. The application was dismissed. In assessing the respondent's costs, Stinson, Assessment Officer, said:
¶ 23 The Respondent argued that the standard hourly rate ($190.00) paid to its solicitor was reasonably necessary for research ultimately of benefit to the Court because the newness and complexity of the PIPED Act made location of relevant authorities particularly difficult, but was justified given that this was one of the first cases to consider the PIPED Act. The Respondent noted that authorities such as Canadian National Railway v. Norsk Pacific Steamship, [1994] F.C.J. No. 1293 (A.O.) at para. 17 and Pharmacia Inc. v. Canada (Minister of National Health and Welfare), [1999] F.C.J. No. 1770 (A.O.) at paras. 48-55 have recognized that computer research is a new tool in litigation preparation and its expense should be accepted as a disbursement. By analogy, the practice of providing photocopied briefs of authorities, made possible by the widespread use of photocopiers, was preceded by the practice of bringing law books to court. Just as disbursements for photocopying charges to produce briefs of authorities are now properly recoverable in litigation costs, the disbursements for accessing online case law, as distinct from the costs associated with the lawyer's time for conducting the research, should now be considered properly recoverable in litigation costs. The Respondent argued further to Black's Law Dictionary, 5th ed., (St. Paul, Minn.: West Publishing Co. 1983) at p. 573 that costs of computer research can be directly traced to a particular product unlike overhead costs which are administrative costs not directly traceable in an economically feasible manner to a particular product. Here, the direct costs were measurable, reasonable and attributable to a particular file because the time spent was logged by file number.
¶ 24 I routinely allow costs for computer research further to my conclusions in Canadian National Railway supra. Those conclusions were supported in an analysis published by the Vancouver Bar Association in The Advocate, Vol. 55, Part I, January 1997 at p. 79 entitled "Recovery of Legal Research Expenses and Assessments of Costs" by Lisa A. Peters. However, part of the difficulty with the evidence, as here, has been the absence of search parameters which might permit confirmation that the work done was not predicated on irrelevant considerations. The entries in the client ledger all used the same format, ie. date, lawyer's initials, Quicklaw identifier, invoice number, amount (ranging from $0.37 to $208.91) and other identifiers, but nothing about search parameters or results. The initial analyses, via litigation, of new legislation can provide added challenges, even for experienced counsel. A result of nil dollars at assessment would be absurd given that I think the Respondent's counsel had an obligation to carry out research for the assistance of the Court in resolution of the issues. However, the Applicant is not obligated to pay for the costs of irrelevant research. Some of the research occurred close to interlocutory events for which no costs are assessable, but my reading of the various documents in the record, with particular regard to motion records, does not reveal obvious linkages. ...
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 (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, 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. )
¶ 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 (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 (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 . 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.
...
¶ 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, 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, 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 (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, 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.
...
¶ 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,
(a) solicitors' fees and disbursements in accordance with the Tariffs; and
(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 Actand no other fees, disbursements or charges shall be assessed or allowed unless the court orders otherwise.
The total amount of $1,882.68 for these two items is disallowed.
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, 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.
[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, 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.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 ), but the assessment officer's finding on computer search charges was left undisturbed.
¶ 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) :
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.).¶ 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?
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.]:
...
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.
¶ 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.
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