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BETWEEN: and CARLING O'KEEFE BREWERIES OF CANADA LIMITED and THE VESSEL M/V RALPH MISENER AND THE OWNERS AND ALL OTHERS INTERESTED IN THE VESSEL M/V RALPH MISENER and MISENER HOLDINGS LIMITED and MISENER SHIPPING
DIANE PERRIER, ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to a judgment dated April 15, 2005, by the Federal Court of Appeal dismissing the appeal with costs. The Notice of Appeal arose from an Order of the Federal Court in file T-1836-90 which dismissed the appellants' action for damages due to the loss of their cargo and allowing the respondents' counterclaim. [2] On July 5, 2005, the Respondents filed his bill of costs and requested that it be assessed without personal appearance of the parties. On August 1, 2005, Appellants' counsel wrote us a letter stating that they leave the taxation of the bill of costs to the Court. I am now ready to proceed with the taxation of the bill of costs.
[3] The Respondents request that the bill of costs be taxed in accordance with the decision of the Federal Court dated October 7, 2003 that granted the Defendants to double their costs excluding disbursements from March 11, 2002 to the date of judgment, to the payment of second counsel fees as well as to taxation in accordance with high side of column IV of part ll of Tariff B. As per Rule 400 of the Federal Court Rules, the Assessment Officer can only rely upon the judgment of the Federal Court of Appeal that states that the appeal is dismissed with costs. The Respondents did not seek directions as to costs in the Federal Court of Appeal as per Rule 403 of the Federal Court Rules. Therefore, the Assessment Officer has to refer to rule 407 of the Federal Court Rules : "Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column lll of the table to Tariff B."
[4] The Respondents' bill of costs will then be granted as per column lll of the table to Tariff B : Item 19 - Memorandum of fact and law (7 units) Item 22 a) - Counsel fee for hearing of appeal 1st counsel per hour 3 x 3hrs = 9 Item 26 - Assessment of costs 2 units Total fees 18 units x $120.00 = $ 2,160.00
I have disallowed item 22 b), item 24 and double the costs as the judgment from the Federal Court of Appeal is silent in that respect. I have reduced item 26 to 2 units since the assessment of costs was not challenged. The unit value of the tariff effective April 1, 2005 was established at $120, the amounts in the bill of costs were adjusted accordingly from $ 110 to $ 120 per unit.
[5] Disbursements are awarded in the amount of $ 1, 322.62 as they were established by Mr.
John O'Connor's affidavit and they appear reasonable.
[6] The bill of costs presented at $ 10,342. 62 is accordingly assessed in the amount of
$ 3,482. 62. A certificate is issued in the Federal Court of Appeal proceeding for $ 3,482. 62.
________________________ Diane Perrier Assessment Officer
Quebec, Quebec November 8, 2005 FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-436-03
STYLE OF CAUSE: ELDERS GRAINS COMPANY LIMITED, and CARLING O'KEEFE BREWERIES OF CANADA LIMITED v. THE VESSEL M/V RALPH MISENER and THE OWNERS AND ALL OTHER INTERESTED IN THE VESSEL M/V RALPH MISENER and MISENER HOLDINGS LIMITED and MISENER SHIPPING
ASSESSMENT OF COSTS IN WRITING
REASONS FOR JUDGMENT BY: DIANE PERRIER
SOLICITORS OF RECORD:
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