Order No. 2008-AT-A-61

August 15, 2008

June 27, 2008

APPLICATION by the Estate of Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities for an award of costs pursuant to section 25.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.

File No. U 3570-14/04-1


AWARD OF COSTS

[1] This award arises from Decision No. 61-AT-A-2008 of the Canadian Transportation Agency (the Agency) dated February 15, 2008 wherein the Agency awarded costs to the Estate of Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities (the applicants) in relation to their participation in the Agency's investigation of fares and charges to be paid by persons with disabilities who require additional seating to accommodate their disabilities to travel by air on domestic air services (the AFC proceeding). In the AFC proceeding, I was one of the panel members and, as such, have knowledge of this case. As a result, in Decision No. 61-AT-A-2008, I was appointed by the Agency, pursuant to subsection 25.1(3) of the Canada Transportation Act (the CTA) as taxing officer to determine the quantum of costs to be taxed and allowed to the applicants, which costs shall be paid by Air Canada, Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz, and WestJet (the respondents).

BACKGROUND

[2] On November 19, 2002, the Agency received an application by Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities against, among others, Air Canada, Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz, and WestJet, for a finding that charges by these air carriers applied to persons with disabilities for additional fares or portions of additional fares constitute an undue obstacle within the meaning of section 172 of the CTA.

[3] On January 10, 2008, the Agency issued Decision No. 6-AT-A-2008. In that Decision, the parties were required to make their written submissions in support of their application for costs.

[4] On January 16, 2008, the applicants filed submissions with the Agency pursuant to section 25.1 of the CTA in support of their application for an award of costs relating to their participation in a proceeding before the Agency. The Agency, after consideration of the submissions filed by the applicants and the respondents, determined, in Decision No. 61-AT-A-2008, that costs should be awarded.

[5] Accordingly, by letter dated February 25, 2008, written pleadings were initiated to gather information on the issue of quantum of costs to be awarded. In that letter, the parties were advised that costs would not be awarded on a party and party basis but, rather, that the general principles used in the past by taxation officers assigned by the Agency would be used. These principles include that the costs are compensatory in nature and reflect the costs that the parties actually incurred in the AFC proceeding that are reasonable, direct and necessary to the proceeding. In that regard, the applicants were advised to submit a Bill of Costs with supporting documents and affidavits.

[6] By letter dated February 26, 2008, Gerard Chouest, on behalf of the respondents, stated that he was not given an opportunity to comment on the method by which the costs would be determined.

[7] On March 7, 2008, a response to Mr. Chouest's letter of February 26, 2008 was sent to the parties which clarified that no decision had been made to award costs on a solicitor-client basis. The parties were also advised that costs would not be awarded on a party and party basis and that the process will provide the respondents with a full opportunity to comment and provide submissions on the reasonableness and the appropriateness of the costs sought before they are assessed.

[8] On March 25, 2008, counsel for the applicants submitted a Bill of Costs and on April 7, 2008, the respondents submitted their response to the Bill of Costs.

PRINCIPLE UNDERLYING COST AWARD

[9] While the Agency does not have regulations or rules prescribing tariffs regarding the awarding of costs to a party, I have reviewed previous taxing orders issued by Agency taxation officers to identify common taxing criteria and have reviewed the principles applied by the Courts. Both counsel invited my attention to a number of Decisions from the Agency involving the awarding of costs, in particular, Taxation Order 1990-R-616 (Sorel Elevators Ltd.), Taxation Order 1991-R-331 (Bowater Mersey Paper Company Limited), Taxation Order 1998-AT-A-216 TAX (Lucie Lemieux-Brassard), Taxation Order 1999-R-48 TAX (Eagle Forest Products Limited Partnership), and Taxation Order 2000-R-178 TAX (Gordon Moffat). I have also examined the arguments of counsel for the applicants and the respondents to arrive at what I consider to be a fair and reasonable assessment to the extent that the costs claimed are reasonably necessary to permit full and fair participation.

[10] As a further tool in my assessment, I have examined the principles applied by the Courts and Tariff B of the Federal Court Rules, SOR/98-106, which detail counsel fees and disbursements allowable on assessment. I have used this Tariff for general comparison purposes; however, Tariff B establishes an assessment criteria based upon party and party costs, which results in less than full compensation for the successful party. As such, it is only a guide, and is not determinative.

[11] From the principles established by the Courts, I note that solicitor and client costs are generally intended to result in a full indemnity of legal fees and disbursements and are generally awarded only where there has been reprehensible conduct on the part of one of the parties such as delaying tactics, unduly prolonging proceedings or scandalous or outrageous conduct. I will be guided by this principle in my assessment.

[12] In making my determination as to the quantum to be awarded, I was guided by the principle that the costs must be reasonable in the circumstances and must have been incurred directly and necessarily for the purposes of the AFC proceeding. I have also carefully reviewed and analysed each item submitted under the Bill of Costs as well as all submissions made by the parties.

BILL OF COSTS

[13] The applicants produced time sheets itemizing their various claims. A summary of the Bill of Costs submitted is as follows:

The applicants produced time sheets itemizing their various claims. A summary of the Bill of Costs submitted is as follows:

Total

$ 405,099.93

Counsel fees (including GST)

$ 341,138.70

Disbursements (including GST)

$ 63,961.23

[14] In reply to the applicants' cost submission, the respondents submit that the amount recoverable should be:

In reply to the applicants' cost submission, the respondents submit that the amount recoverable should be:

Total

$174,010.04

Counsel fees

$136,500.00

Disbursements

$ 37,510.04

A) Counsel hourly rates

[15] David Baker and Sarah Godwin represented the applicants as counsel throughout the AFC proceeding, assisted by junior lawyers, students-at-law and paralegals.

David Baker and Sarah Godwin represented the applicants as counsel throughout the AFC proceeding, assisted by junior lawyers, students-at-law and paralegals.

David Baker

$ 225 per hour

Sarah Godwin

$ 175 per hour

Junior lawyers

$ 175 per hour

Students-at-law

$ 80 per hour

Paralegals

$ 50 per hour

[16] The respondents do not oppose the hourly rate charged by Mr. Baker, acknowledging that he has over 30 years of experience as an advocate; they defer to Tariff B, however, to argue that Ms. Godwin's rate should be reduced to $112.50 per hour, given that she is significantly less experienced. The respondents also submit that other junior lawyers should be reimbursed at a rate of $112.50 per hour. They have no comments with respect to the hourly rates for the students-at-law and paralegals.

[17] After reviewing the parties' submissions in this matter and noting the seniority and expertise of Mr. Baker, I find that a rate of $225 per hour is reasonable.

[18] With respect to the rate for Ms. Godwin, while I note that she has been called to the bar for only four years, I recognize her contribution to the proceeding and her expertise in the area of accessible transportation matters. I therefore consider a rate of $150 per hour to be reasonable.

[19] With respect to the rates for the other junior lawyers, I agree with the respondents that a rate of $112.50 per hour is reasonable.

[20] Finally, with respect to the rates for the students-at-law and the paralegals, given that the respondents do not object to the proposed hourly rates, I consider the rates of $80 and $50, respectively, to be reasonable.

B) Counsel fees

[21] I have reviewed the submissions of both parties and I found the cost submission of the applicants very difficult to sort through. Unlike the applicants' submission, I found that the respondents did an excellent job of summarizing and categorizing the expense items. Because it was easier to understand, I have decided to sort the costs according to the twenty categories listed in the respondents' submission, which I will deal with separately below.

1) Pre-complaint (May 16, 2000 to October 31, 2002)

[22] The applicants submit costs in the amount of $26,735 for counsel fees for the period May 16, 2000 to October 31, 2002. The respondents cite Taxation Order 2000-R-178 TAX (Gordon Moffat) and submit that the dockets provided are not directly related to the AFC proceeding and, as such, should be disallowed in full.

[23] While I recognize that the subject matter of the AFC proceeding related to a long-standing issue, a line must be drawn somewhere. The complaint in the AFC proceeding was filed with the Agency on November 19, 2002. I consider it reasonable to allow a three-week period for the preparation of the complaint and I am, therefore, in agreement with counsel for the respondents that any work claimed prior to the filing of the application in the AFC proceeding should be excluded, as any work undertaken prior to that time cannot be said to be directly and necessarily related to the proceeding. I am therefore disallowing all dockets prior to November 1, 2002.

2) Preparation and filing of the complaint (November 1 to 19, 2002)

[24] The applicants have submitted costs in the amount of $5,755 for the preparation and filing of their complaint. The complaint in the AFC proceeding was filed with the Agency on November 19, 2002. The respondents consider three weeks to be a reasonable amount of time for the preparation of the complaint and submit that $5,523.75 is a reasonable award. The difference in the two submissions reflects the proposed change in Ms. Godwin's hourly rate.

[25] I agree with the respondents that a three-week period for preparation of the complaint is reasonable and, as such, all dockets submitted during the period November 1 to 19, 2002 will be allowed. Therefore, I approve the following fees:

I agree with the respondents that a three-week period for preparation of the complaint is reasonable and, as such, all dockets submitted during the period November 1 to 19, 2002 will be allowed. Therefore, I approve the following fees

Total

$ 5,662.50

David Baker (22.7 hours x $225)

$ 5,107.50

Sarah Godwin (3.7 hours x $150)

$ 555.00

3) Post-filing of the complaint (November 20, 2002 to January 19, 2003)

[26] The applicants submit fees in the amount of $3,970 for this period of time. The respondents submit that the AFC proceeding was stayed during this period of time as a result of Air Canada being under Companies' Creditors Arrangement Act (the CCAA) protection and, therefore, no dockets should be allowed.

[27] After reviewing the dockets submitted, I am of the opinion that the research conducted during this period of time was related to the matter before the Agency with the exception of the docket relating to the Agency bias issue, which I am not prepared to allow as this was not directly related to the main issue in the AFC proceeding. I therefore approve the following fees:

After reviewing the dockets submitted, I am of the opinion that the research conducted during this period of time was related to the matter before the Agency with the exception of the docket relating to the Agency bias issue, which I am not prepared to allow as this was not directly related to the main issue in the AFC proceeding. I therefore approve the following fees.

Total

$ 3,570.00

David Baker (12.4 hours x $225)

$ 2,790.00

Sarah Godwin (5.2 hours x $150)

$ 780.00

4) Interrogatories and stay issues (January 20, 2003 to February 17, 2005)

[28] The applicants are claiming costs in the amount of $28,507.50 for counsel fees for the period January 20, 2003 to February 17, 2005. The respondents submit that, to the extent that the matter deals with the Council of Canadians with Disabilities (CCD) providing answers to interrogatories, the claim is excessive, given the sparse amount of data ultimately delivered by CCD. Air Canada also submits that the CCAA stay extended into this period. For those reasons, the respondents ask that I reduce the time claimed by 50 percent.

[29] I have reviewed the Bill of Costs and I find the majority of the dockets to be reasonable and related to the main issue. However, I am not convinced that the applicants have demonstrated that all of the costs submitted were for matters that are directly and necessarily for the purposes of the AFC proceeding. As such, I am disallowing costs relating to the following items: all research in relation to the Charter; research on crown immunity, as it is not related to the main issue in the AFC proceeding; and all dockets relating to costs, which are dealt with in item 20 of this Decision. I am also disallowing several items that I find to be vague or impossible to link to the process, for example, dockets indicating "legal research", "quot;, ", "quot;instructions to paralegal" and "review DOJ submissions". This type of docket is clearly lacking in clarity and I am therefore rejecting dockets of this nature.

[30] I therefore approve the following costs:

I therefore approve the following costs:

Total

$ 20,632.50

David Baker (71 hours x $225)

$ 15,975.00

Sarah Godwin (21.6 hours x $150)

$ 3,240.00

Faisal Bhabha (12.6 hours x $112.50)

$ 1,417.50

5) Pre-hearing conference and following submissions (February 18 to March 1, 2005)

[31] The applicants claim $4,825 for this period of time. The respondents argue that the issues arising from the brief pre-hearing teleconference were not significant and request that I reduce the time by 50 percent.

[32] In my opinion, the time spent at the pre-hearing conference was directly and necessarily related to the AFC proceeding and I will allow the costs in full as I find them to be reasonable. Therefore, I approve the following costs:

I therefore approve the following costs:

Total

$ 4,492.50

David Baker (11.1 hours x $225)

$ 2,497.50

Faisal Bhabha (13.3 hours x $112.50)

$ 1,995.00

6) Interrogatories re: costs and confidentiality (March 2 to April 21, 2005)

[33] For this period of time, the applicants claim $2,820. The respondents agree with the hours claimed; however, they request that the hourly rate for the junior lawyers be reduced.

[34] As previously discussed, I agree that the rate for the junior lawyers be reduced to $112.50 per hour. I am prepared to allow all hours claimed except for the time spent on cost issues. The cost issues will be dealt with separately in item 20 of this Decision.

As previously discussed, I agree that the rate for the junior lawyers be reduced to $112.50 per hour. I am prepared to allow all hours claimed except for the time spent on cost issues. The cost issues will be dealt with separately in item 20 of this Decision.

Total

$ 2,111.25

David Baker (7.1 hours x $225)

$ 1,597.50

Faisal Bhabha (1.0 hours x $112.50)

$ 300.00

Tamara Jordan (1.9 hours x $ 112.50)

$ 213.75

7) Preparation for Phase I of the hearing (April 22 to May 29, 2005)

[35] The applicants have claimed costs in the amount of $13,215. The respondents submit that the legal issues in this case were similar to those in the VIA Rail Canada Inc. (VIA Rail) case and, therefore, the time taken to prepare is excessive. As a result, they submit that the amount be reduced by 25 percent.

[36] I would normally use the principle applied in Taxation Order 1998-AT-A-216 TAX (Lucie Lemieux-Brassard) to award two days of preparation time for each day spent at the hearing (i.e., 8 hours per day x 8 days = 64 hours x $225 = $14,400). In this case, however, as the total amount claimed for this item is less than that calculated by using this formula, I will allow the hours claimed at the counsel rates as previously determined.

As previously discussed, I agree that the rate for the junior lawyers be reduced to $112.50 per hour. I am prepared to allow all hours claimed except for the time spent on cost issues. The cost issues will be dealt with separately in item 20 of this Decision.

Total

$ 12,577.5

David Baker (50.8 hours x $225)

$ 11,430.00

Faisal Bhabha (10.2 hours x $112.50)

$ 1,147.50

8) Attendance at Phase I of the hearing (May 30 to June 3, 2005)

[37] The applicants claim $8,640 for Phase I of the hearing, which is not disputed by the respondents.

[38] Because it is unclear from the dockets submitted how many hours were actually spent in attendance at the hearing (I note that the docket submissions include entries such as "preparation for hearing; appear at hearing" in the same entry), and it is clear in my calculations of those five entries that the $8,640 being claimed is, in fact, for both preparation and attendance at the hearing, I have decided to use the principle applied in Taxation Order 1990-R-616 (Sorel Elevators Ltd.), in which case the taxation officer allowed eight hours as being the maximum hours to be claimed for a day. I therefore award the following: 4 days x 8 hours per day = 32 hours x $225 = $7,200.

9) Stretcher case and further interrogatories (June 4 to October 13, 2005)

[39] The applicants submit $15,153 for costs during the period June 4, 2005 to October 13, 2005. The respondents submit that they were successful in maintaining their position on this part of the application. This opposition to the CCD claim resulted in a simplification of the overall hearing and, therefore, there is an argument that the respondents should actually recover their costs with respect to this portion of the application. CCD, as the unsuccessful party, should not be in a position to collect fees on this issue.

[40] After reviewing the applicant's submission, I acknowledge that some of the dockets are related to the stretcher case; however, the majority of the time spent was on responding to interrogatories in this case. With respect to the stretcher case, I am in agreement with the respondents that the applicants, as the unsuccessful party, should not be entitled to recover their costs. I am therefore disallowing all dockets submitted with respect to the stretcher case. I will allow the remainder of the time which was spent responding to interrogatories. Therefore, the following costs are allowed:

Therefore, the following costs are allowed.

Total

$ 12,248.50

David Baker (53.3 hours x $225)

$ 11,992.50

Kate Sellar (3.2 hours x $80)

$ 256.00

10) Cross-examination of Dr. Lewis (Ottawa/Hull) (October 14, 2005)

[41] The applicants claim $2,520 for the cross-examination of Dr. Lewis, which amount is not disputed by the respondents. I find this cost to be reasonable and, therefore, approve the amount of $2,520 in full.

11) Further interrogatories/Pre-preparation for Phase II of the hearing (October 15, 2005 to September 30, 2006)

[42] The applicants submit costs in the amount of $66,293.50 for this period of time. The respondents submit that the fees are excessive because the vast majority of the interrogatories involved data that had to be collected from the air carriers and it is difficult to see how CCD could have invested so much time in this stage of the AFC proceeding. Given the sheer number of hours billed, it also appears that there may have been some duplication of work. The respondents ask that I reduce the amount of time to 25 percent of the amount claimed, that is reduce it to $13,265.56.

[43] After a close review of the dockets submitted, I find that the majority of the time billed was for work that was necessary to the outcome of the proceeding.

[44] I therefore approve the following costs:

I therefore approve the following costs :

Total

$ 58,769.00

David Baker (123.4 hours x $225)

$ 27,765.00

Sarah Godwin (209.5 hours x $150)

$ 30,885.00

Kate Sellar (0.3 hours x $80)

$ 24.00

Stacie Kolpak (1.9 hours x $50)

$ 95.00

12) Preparation for Phase II of the hearing (October 1 to November 13, 2006)

[45] The applicants request costs in the amount of $28,833 for preparation for Phase II of the hearing. The respondents submit that the large number of hours charged by three lawyers and a review of the dockets give the appearance of duplication of work and they ask that I reduce the amount by 25 percent.

[46] I have reviewed the dockets submitted for this period of time and note that some of the dockets appear to be duplicated. I therefore disallow any instance where there seems to be duplication. All other costs submitted are approved as follows:

I have reviewed the dockets submitted for this period of time and note that some of the dockets appear to be duplicated. I therefore disallow any instance where there seems to be duplication. All other costs submitted are approved as follows:

Total

$ 27,921.50

David Baker (43.9 hours x $225)

$ 9,877.50

Sarah Godwin (76.2 hours x $150)

$ 13,335.00

Stacie Kolpak (8.1 hours x $50)

$ 405.00

Georgiana Stewart (53.3 hours x $80)

$ 4,264.00

Cara Wilkie (0.5 hours x $80)

$ 40.00

13) Attendance at Phase II of the hearing (November 14 to 29, 2006)

[47] The applicants claim $62,757 for attendance at Phase II of the hearing. The respondents submit that, on average, Mr. Baker docketed 14 hours per day for this portion of the hearing and Ms. Godwin docketed 11 hours, on average, which is not justified. The respondents submit that this is a dramatic increase from Phase I of the hearing where 7.5 hours was claimed per day and argue that a maximum of 8 hours per day should be allowed as this is considered a full working day.

[48] Even though the respondents note that, on average, 7.5 hours per day were claimed by the applicants for Phase I of the hearing, a review of the dockets does not support this. In fact, as discussed above, the dockets submitted at Phase I of the hearing combine preparation for the hearing and attendance at the hearing, making it unclear exactly how much time is being claimed for attendance at the hearing. In any event, I am in agreement with the respondents that the amount of time claimed for Phase II of the hearing is excessive. In order to make a reasonable assessment, I have decided to follow the principle used in Taxation Order 1990-R-616 (Sorel Elevators Ltd.), in which case the taxation officer allowed eight hours as being the maximum hours to be claimed for a day.

[49] With respect to counsel attendance at the hearing, I am using the principle set out in Tariff B of allowing 50 percent of the amount calculated for first counsel as the amount eligible for second counsel. Therefore, the following costs are allowed:

With respect to counsel attendance at the hearing, I am using the principle set out in Tariff B of allowing 50 percent of the amount calculated for first counsel as the amount eligible for second counsel. Therefore, the following costs are allowed :

Total

$ 35,100.00

David Baker (13 days x 8 hours = 104 x $225)

$ 23,400.00

Sarah Godwin (50%)

$ 11,700.00

14) Preparation for the final arguments stage (November 30 to December 11, 2006)

[50] The applicants claim $20,294.50 for preparation for the final arguments stage in this case. The respondents submit that, given that the legal issues are similar to those in the VIA Rail case, the amount of time to prepare closing arguments is excessive and, therefore, they suggest an amount of $13,355.26.

[51] I have reviewed the dockets provided by the applicants and consider that the preparation for the final arguments stage in this case is a necessary element to the AFC proceeding. In addition, I find that the fees are reasonable and will allow all fees in full at the hourly rates for counsel indicated above.

David Baker (52.7 hours x $225)

$ 11,857.50

Sarah Godwin (39.8 hours x $150)

$ 5,970.00

Georgiana Stewart (13.4 hours x $80)

$ 1,072.00

Stacie Kolpak (8 hours x $50)

$ 400.00

Total

$ 19,299.50

15) Attendance at the final arguments stage (December 12, 2006)

[52] The applicants submit costs in the amount of $6,192.50 for attendance at the final arguments stage. The respondents argue that the time spent by secondary counsel, Sarah Godwin, should be completely disallowed as having two counsel present at the final arguments is unnecessary.

[53] I am in agreement with the respondents that Ms. Godwin's attendance at the final arguments stage was not necessary to the outcome of the AFC proceeding, as the final arguments involved no interrogatories or cross-examination and Mr. Baker's attendance was sufficient to address any argument put forward by the respondents which may not have been anticipated. I am therefore disallowing the costs submitted for Ms. Godwin, and I accept the following cost, which includes travel time for Mr. Baker: $3532.50 (i.e., 15.7 hours x $225).

16) Post-argument/Pre-Supreme Court Decision on the VIA Rail case (December 13, 2006 to April 4, 2007)

[54] The applicants request costs in the amount of $382.50 for the period December 13, 2006 to April 4, 2007. The respondents submit that the amount should not be allowed as there was no activity on the file during this period.

[55] After reviewing the applicants' submission, it is clear that there are only two dockets for this period of time and both relate to file organization which I am not prepared to allow as being directly and necessarily related to the AFC proceeding. I, therefore, disallow this cost in full.

17) Submissions re: Supreme Court Decision in the VIA Rail case (April 5 to May 29, 2007)

[56] The applicants claim costs in the amount of $16,033 for its submission relating to the impact of the Supreme Court Decision in the VIA Rail case. The respondents submit that, given that counsel argued in the VIA Rail case, the amount of time spent preparing submissions was excessive and, therefore, they propose to reduce the time by 50 percent.

[57] I am in agreement with the respondents' submission that the time spent is excessive given that Mr. Baker and Ms. Godwin argued the VIA Rail case before the Supreme Court of Canada and, as a result, should not have required all of the time that was claimed to prepare submissions relating to a case that they were intimately involved in.

[58] In light of the above, I am cutting the costs related to this in half and, therefore, approve the amount of $8,016.50.

18) Post-VIA Rail submissions/Before the Agency's Decision (May 30, 2007 to January 9, 2008)

[59] The applicants submit costs in the amount of $9,625 for the period May 30, 2007 to January 9, 2008. The respondents submit that this amount should be disallowed in full as all submissions had been made at this point and the parties were awaiting the Decision of the Agency at that time.

[60] After reviewing the dockets submitted, I am of the opinion that all costs submitted up to August 31, 2007 should be allowed. It is clear from a review of the Agency's Decision in the AFC proceeding case that pleadings in relation to the proceeding were ongoing until August 31, 2007. In addition, the dockets submitted between May 30 and August 31, 2007 relate to the applicant's retention of an expert, Robert Brown, who ultimately prepared a report that was accepted and filed with the Agency on June 27, 2007 regarding the tax status of WestJet. I will therefore allow the following costs submitted up to August 31, 2007:

David Baker (9.3 hours x $225)

$ 2,092.50

Sarah Godwin (16.2 hours x $150)

$ 2,430.00

Total

$ 4,522.50

19) Period after issuance of the Agency's Decision (January 10 and 11, 2008)

[61] The applicants submit costs in the amount of $630 for January 10 and 11, 2008 which the respondents refer to as "review of the CTA Decision". However, a review of the dockets submitted during this two-day period indicate that the dockets are for a telephone discussion between the two counsel in this case and research relating to appeal issues and available options. I am not prepared to allow any amount for either the review of the final Decision or for research relating to appeal options. I therefore disallow these costs.

20) Bill of Costs (March 7 to 20, 2008)

[62] The applicants submit costs in the amount of $2,779.50 for preparation of the Bill of Costs in this matter. The respondents do not oppose this, with the exception of the reduced hourly rates for counsel.

[63] I reiterate that the cost submission of the applicants was very difficult to decipher. It was necessary to spend an inordinate amount of time trying to categorize and assess the various dockets, which were often unclear and not easy to understand. In addition, in most cases, I was unable to reconcile the costs submitted with the itemized dockets that were provided. In light of this, I am not prepared to allow the 15 hours that were claimed to prepare the Bill of Costs nor to allow any cost-related submissions during the AFC proceeding. I would also like to note that the preparation of a Bill of Costs is generally considered to be an administrative task and, as such, I am not prepared to approve counsel rates for the preparation of the Bill of Costs. For all of the above reasons, I will defer to Tariff B. Because of the volume and complexity of the issues in this matter, I am prepared, in this case, to accept the high end of Column V of Tariff B and, therefore, allow $1,200 for the preparation of the Bill of Costs in this matter.

Total counsel fees

[64] To summarize the above, I accept the following counsel fees:

Pre-complaint

$ 0.00

Preparation and filing of the complaint

$ 5,662.50

Post-filing of the complaint

$ 3,570.00

Interrogatories and stay issues

$ 20,632.50

Pre-hearing conference and following submissions

$ 4,492.50

Interrogatories re: costs and confidentiality

$ 2,111.25

Preparation for Phase I of the hearing

$ 12,577.50

Attendance at Phase I of the hearing

$ 7,200.00

Stretcher case and further interrogatories

$ 12,248.50

Cross-examination of Dr. Lewis

$ 2,520.00

Further interrogatories/Pre-preparation for Phase II of the hearing

$ 58,769.00

Preparation for Phase II of the hearing

$ 27,921.50

Attendance at Phase II of the hearing

$ 35,100.00

Preparation for the final arguments stage

$ 19,299.50

Attendance at the final arguments stage

$ 3,532.50

Post-argument/Pre-Supreme Court Decision in the VIA Rail case

$ 0.00

Submissions re: Supreme Court Decision in the VIA Rail case

$ 8,016.50

Post-VIA Rail submissions/Before the Agency's Decision

$ 4,522.50

Period after issuance of the Agency's Decision

$ 0.00

Bill of Costs

$ 1,200.00

Total counsel fees

$ 229,376.25

Disbursements

[65] The applicants claim disbursements in the amount of $60,915.46 plus GST in the amount of $3,034.77, for a total of $63,961.23.

[66] The respondents accepts all disbursements with the exception of the following three items:

  1. Expert fees for Dr. Lewis, HLB Decision Economics Inc., in the amount of $42,113.19 - The respondents submit that even though CCD had paid accounts of HLB Decision Economics Inc. (Dr. Lewis' company) in excess of $27,000 (purportedly for "preparation and testimony") up to December 2006 (after the hearing had concluded), for some reason, another account was delivered one year later in November 2007 for services rendered one year earlier. The respondents query why these amounts were not invoiced in the December 2006 account.
  2. The respondents submit that they should not be required to pay the account of Robert Brown dated January 14, 2008 for $2,400, plus GST. This account indicates that it was for services rendered some six months prior (on June 22, 2007) after the Agency's Decision was delivered. The respondents query whether there was a firm commitment to pay for these services, given the timing of the account. Moreover, given that the services were rendered well after the final arguments had been made, they could not possibly be related to the litigation in any event.
  3. The respondents submit that the amount claimed by the applicants of $12,986 for photocopies is excessive and suggest that the going rate for photocopies is 10 cents per page.

[67] With respect to the expert fees for Dr. Lewis, I am of the opinion that the demonstrated expertise of Dr. Lewis contributed to the hearing process and that the value of Dr. Lewis' evidence as a whole should be considered. I am of the opinion that the total time claimed by Dr. Lewis is reasonable and, accordingly, costs are allowed in the amount of $42,113.19.

[68] With respect to the expert fees for Mr. Brown, I acknowledge that Mr. Brown participated in the final stages of the hearing process including preparing a report that was filed with the Agency in the AFC proceeding. Mr. Brown was also cross-examined by WestJet on August 16, 2007. In light of this, I consider his fee to be reasonable and would allow his fees in the amount of $2,400.

[69] Finally, with respect to the photocopying charges, except for a mention in the affidavit of Kelley J. Bryan, there is no supporting documentation to justify this claim. I accept from the supporting affidavit filed that 51,944 photocopies were made; however, without supporting documentation to justify the rate of 25 cents per page, I am not prepared to accept this. I agree with the respondents that 10 cents per page is reasonable in the circumstances. I, therefore, approve photocopying charges in the amount of $5,194.40.

[70] From my examination, I am persuaded that all of the remaining disbursements are reasonable and were incurred necessarily and directly for the purposes of the AFC proceeding. I, therefore, allow the following disbursements:

Expert fees for Dr. Lewis

$ 42,113.19

Expert fees for Mr. Brown

$ 2,400.00

Transaction levy

$ 50.00

Transcription fees

$ 500.00

Courier and delivery charges

$ 147.87

Photocopying charges

$ 5,194.40

Facsimiles

$ 470.50

Long distance telephone charges

$ 840.00

Travel expenses

$ 1,407.90

Total disbursements

$ 53,123.86

COSTS AS TAXED:

[71] I hereby tax the fees and disbursements as follows:

Counsel fees

$ 229,376.25

GST on counsel fees (5%)

$ 11,468.81

Total counsel fees

$ 240,845.06

Disbursements

$ 53,123.86

GST on disbursements (5%)

$ 2,656.19

Total disbursements

$ 55,780.05

Total counsel fees and disbursements

$ 296,625.11

[72] The costs awarded herein shall be paid to the Estate of Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities by Air Canada, Air Canada Jazz and WestJet, which shall each pay 1/3 of the total award of $296,625.11. The award of costs shall be paid within 60 days from the date of this Decision.

(signed)

Beaton Tulk
Taxing Officer

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