Decision No. 447-R-2014

INTRODUCTION

[1] On April 14, 2014, Louis Dreyfus Commodities Canada Ltd. (LDC) filed with the Canadian Transportation Agency (Agency) a level of service complaint against the Canadian National Railway Company (CN), and requested the Agency to grant it interim relief.

[2] The Agency granted LDC interim relief in an interim order dated May 2, 2014 (Interim Order).

[3] On September 2, 2014, LDC filed an application with the Agency alleging that CN did not comply with the Interim Order, requesting the Agency to enforce it and to order costs against CN.

[4] On September 22, 2014, the Agency issued a confidential decision (Enforcement Order), in which the Agency found that CN was not in compliance with the Interim Order. The Agency reminded CN that it is bound by and expected to comply with the Interim Order until a decision is rendered on the level of service complaint.

[5] The Agency subsequently opened pleadings and received submissions from LDC and CN on LDC’s request to order costs against CN.

Issue

[6] Should the Agency award costs to LDC?

Conclusion

[7] The Agency awards costs to LDC.

POSITIONS OF THE PARTIES

[8] CN submits that the starting point for any consideration of an award of costs is section 25.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), which it states the Agency has consistently interpreted and applied. CN refers to 432-C-A-2013">Decision No. 432-C-A-2013, in which the Agency had the opportunity to consider the scope and breadth of section 25.1 of the CTA. CN points out that this approach, i.e., that an award of costs is warranted only in special or exceptional circumstances, was also applied by the Agency in 268-R-2013">Decision No. 268-R-2013. CN argues that nowhere in the enforcement application does LDC provide evidence as to any “special or exceptional circumstances” that would justify or warrant the Agency granting the exceptional remedy of costs and, to the contrary, the manner in which LDC proceeded with this “enforcement” application would militate against any award of costs in favour of LDC.

[9] CN also states that:

[…] instead of making its case in a comprehensive and proper manner, LDC elected to present its evidence in an incomplete, piece-meal fashion over the course of a number of letters to the Agency.

[…]

Instead of including all of the necessary evidence in its Initial Application, as is required, LDC filed a very minimal “bare-bones” application and elected to supplement that insufficient, bald submission with voluminous, new materials in an attempt to buttress and improve its claim for relief. New allegations and appendices were filed by LDC without first obtaining leave from the Agency.

[10] CN contends that it was compelled to write to the Agency, by letter dated September 9, 2014, and again on September 10, 2014, complaining of LDC’s repeated provision of additional evidence to support its claim that CN had breached the Interim Order.

[11] CN points out that one of the factors that the Agency is to consider in its discretion regarding the awarding or denial of costs is “whether parties have acted efficiently and in good faith”. CN submits that by splitting its case and introducing new evidence without leave at each step of the proceeding, instead of submitting a complete application at the outset, it is patently evident that LDC has not “acted efficiently”. CN adds that the conduct of LDC unnecessarily lengthened the duration of the proceeding; therefore, an award of costs should not follow in these circumstances.

[12] According to CN, similar to the merits of LDC’s application to enforce the Interim Order, LDC has only made a general, bald request for costs at the end of its enforcement application, without providing any substantive rationale or evidence to justify such an award. CN adds that before it can be reasonably asked to answer a claim (for an award of costs or anything else) made by an applicant such as LDC, the applicant must first fully explain and justify why the requested order should be granted. CN states that this is particularly so where, as in this case, the remedy being sought is exceptional and extraordinary, as is a cost award by the Agency. CN argues that it is neither appropriate nor fair to require CN to answer a case that has not even been fully disclosed against it.

[13] According to CN, it is imperative to review what the Agency actually decided in assessing the propriety of any award of costs. CN states that while the Agency said that it “expects CN to comply with that [Interim] Order until a decision is rendered on the level of service complaint”, the Agency specifically did not require anything further of CN. CN adds that, while the Agency may have found that CN still needed to do more, these are not the types of circumstances that would warrant the extraordinary remedy of costs from the Agency.

[14] CN respectfully requests that the Agency dismiss the application for an award of costs.

[15] LDC agrees with 432-C-A-2013">Decision No. 432-C-A-2013 and 268-R-2013">Decision No. 268-R-2013 and the principles for which they stand. LDC contends that the awarding of costs to LDC in this matter is entirely in keeping with those principles:

• LDC has a substantial interest in the proceeding;
• LDC participated in the proceeding in a responsible manner; and,
• LDC made a significant contribution to a better understanding of the issues.

[16] LDC maintains that, in keeping with the principles for which the above Decisions stand, there are special or exceptional circumstances compelling the award of costs in this matter, which are, simply put, CN’s unjustified failure to comply with the Interim Order.

[17] LDC submits that it has not acted improperly; its evidence was cogent and supported by an affidavit; and any further allegations were only made by LDC to directly counter false claims by CN. As examples of such false claims, LDC cites the following:

• CN’s claim that it could not deliver the traffic because the Hudson Bay Railway Company line was congested;
• CN’s claim that the Aberdeen facility trackage was blocked and unable to receive the cars ordered by LDC when planned to be served;
• CN’s claim that it was unable to deliver LDC’s traffic due to a force majeure event; and,
• CN’s claim that Mr. Stowe had not provided LDC with terminal authorization.

[18] According to LDC, CN was given every opportunity to justify what it had done and to respond to all of the evidence provided by LDC, but was simply unable to do so, because there was no justification.

[19] LDC states that the Agency found as a fact, on the evidence, that CN has not complied with the Interim Order and that the reasons raised by CN did not justify its failure to comply.

[20] LDC argues that its submission of September 16, 2014 provides the most compelling support for its request for costs, which is summarized in the following excerpt taken from that submission:

In light of the above, and the evidence provided by LDC in its submissions in the matter, LDC respectfully asks that the Agency take immediate steps to enforce its Interim Order and, in the circumstances, order costs against CN as requested by LDC in its Application. LDC submits that Orders of the Agency requiring a railway to provide adequate and suitable accommodation for traffic offered by its customers must be respected by the railway, and must be strictly enforced, otherwise the level of service provisions of the Canada Transportation Act will cease to be the essential tool of national transportation policy that Parliament intended.

[21] LDC states that CN defied the Interim Order, and got caught doing it. LDC adds that it was put to the task of demonstrating that fact, which was onerous and costly. LDC concludes by stating that it should be awarded costs in these circumstances.

ANALYSIS AND FINDINGS

[22] Pursuant to subsection 25.1(1) of the CTA, the Agency has all the powers that the Federal Court has to award costs in a proceeding before it under the Federal Court Rules, SOR/98-106, notably under section 400. That section provides that the Federal Court has full discretionary power over the amount and the allocation of costs, and to determine by whom they are to be paid.

[23] The Agency has full discretion to award costs and, in the past, it has relied on a set of general principles in determining whether to award costs, including whether the applicant for an award of costs has a substantial interest in the proceeding; participated in the proceeding in a responsible manner; made a significant contribution that is relevant to the proceeding; and contributed to a better understanding of the issues by all parties before the Agency. The Agency also considers a combination of factors such as the nature of the application and the issues raised; the length, complexity and outcome of the proceeding; and whether the parties have participated efficiently and in good faith.

[24] Through the Interim Order, the Agency directed CN to take certain actions to provide interim relief to LDC. CN’s non-compliance with the Interim Order resulted in LDC having to initiate its request to have the Interim Order enforced, and to exchange a series of pleadings in support of its position.

[25] The Agency found in the Enforcement Order that CN did not comply with the Interim Order and that the reasons raised by CN for failing to comply with the Interim Order did not justify the non‑compliance. Had CN complied with the Interim Order, LDC would not have had to request that it be enforced, thus foregoing the time and effort required to represent itself and substantiate its request.

[26] The Agency finds that LDC had a substantial interest in the proceeding, participated responsibly, and made relevant contributions. The Agency also finds that the issue raised was of significant importance to LDC, given that CN did not fully provide the interim relief ordered by the Agency.

[27] Therefore, the Agency finds it appropriate to award costs to LDC.

CONCLUSION

[28] Based on the above findings, the Agency awards costs to LDC.

[29] The Agency, pursuant to subsection 25.1(3) of the CTA, appoints Member William G. McMurray as the taxing officer, whose role is to gather information to establish the quantum of costs to be taxed and allowed to LDC.

[30] Before the taxing officer conducts pleadings, the parties are provided with an opportunity to agree on the issue of costs. If the parties are unable to agree on the costs by January 12, 2015, LDC may refer the matter to the Agency, following which the taxing officer will commence the above‑noted process.

---

TAXATION OF BILL OF COSTS 2015-447-R-2014 TAX

August 19, 2015

AWARD of Costs – Louis Dreyfus Commodities Canada Ltd. v. Canadian National Railway Company.

Case No. 15-00722

 

INTRODUCTION

[1]

This assessment arises from Decision No. 447-R-2014 dated December 11, 2014 of the Canadian Transportation Agency (Agency). In that Decision, the Agency awarded costs to Louis Dreyfus Commodities Canada Ltd. (LDC) in relation to its application for enforcement of an Interim Order made by the Agency on May 2, 2014 (Interim Order) relating to a level of service complaint against the Canadian National Railway Company (CN) pursuant to section 116 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), and a request to the Agency by LDC to grant it interim relief.

[2]

In Decision No. 447-R-2014, I was appointed by the Agency, pursuant to subsection 25.1(3) of the CTA, as Taxing Officer to determine the quantum of costs to be taxed and allowed to LDC, which costs shall be paid by CN.

[3]

In its decision to allow costs, the Agency stated that if the parties were unable to agree on the costs by January 12, 2015, LDC may refer the matter to the Agency, following which the Taxing Officer would commence the award of costs process. By letter dated February 11, 2015, LDC advised that the parties were unable to reach agree on the costs and requested that the Taxing Officer commence pleadings in the matter.

BACKGROUND

[4]

On April 14, 2014, LDC filed a level of service application with the Agency. LDC alleged that CN had failed to fulfil its level of service obligations with respect to LDC’s elevator facilities at Glenavon, Saskatchewan; Aberdeen, Saskatchewan; Joffre, Alberta; and, Lyalta, Alberta. LDC also requested that the Agency grant it interim relief.

[5]

The Agency granted LDC interim relief in the Interim Order. The Agency ordered CN to provide train service for placement of empty cars for loading and pick-up of loaded cars at LDC’s facilities in Glenavon, Aberdeen, Joffre and Lyalta.

[6]

On September 2, 2014, LDC filed an application with the Agency alleging that CN had not complied with the Interim Order and requested the Agency to enforce it and to order costs against CN (Enforcement Proceedings).

[7]

On September 22, 2014, the Agency issued a confidential decision. The Agency found that CN had not complied with the Interim Order and the Agency reminded CN that it is bound by and expected to comply with the Interim Order until a decision is rendered on the level of service application.

[8]

The Agency subsequently opened pleadings and received submissions from LDC and CN on LDC’s request to order costs against CN related to its failure to comply with the Interim Order.

[9]

In Decision No. 447-R-2014, the Agency awarded costs to LDC to be paid by CN.

[10]

On February 13, 2015, I opened pleadings on the award of costs and advised the parties that they may refer in their submissions to general principles previously applied by Agency taxing officers as well as to other guiding material, including, without limitation, Tariff B of the Federal Courts Rules, SOR/98-106.

[11]

On March 5, 2015, counsel for LDC submitted a Bill of Costs which consisted of both a confidential version for the Taxing Officer and a redacted version for CN and the public. LDC requested confidentiality on the basis of solicitor-client privilege and stated that if the confidential version were to be disclosed to CN, it would cause LDC to suffer specific direct harm.

[12]

On March 16, 2015, CN submitted its response to the Bill of Costs which included a request for a stay of any order for the payment of costs by CN to LDC pending the outcome of CN’s appeal of the Agency decision dated October 3, 2014 before the Federal Court of Appeal.

[13]

On March 20, 2015, LDC submitted its reply to CN’s March 16, 2015 submission.

[14]

By letter dated May 25, 2015, I made preliminary determinations on CN’s request for a stay and on the issue of confidentiality. With respect to CN’s request for a stay, I denied CN’s request based on the fact that CN’s application for leave to appeal the Agency’s Interim Order was dismissed with costs by the Federal Court of Appeal on July 10, 2014.

[15]

With respect to the issue of confidentiality, I advised LDC to either provide CN with an unredacted version of its submission or decide to not provide CN with an unredacted version of the submission, in which case the costs associated with the redacted elements would not be considered by the Taxing Officer.

[16]

On May 27, 2015, LDC provided CN with an unredacted version of its submission.

[17]

On June 3, 2015, CN responded to LDC’s unredacted submission and on June 11, 2015, LDC filed its reply.

PRINCIPLES UNDERLYING COST AWARDS

[18]

While the Agency does not have regulations or rules prescribing tariffs regarding the awarding of costs to a party, I have reviewed previous taxation orders issued by Agency taxing officers to identify common taxing criteria and have reviewed the principles applied by the Courts. Both counsel directed my attention to a number of taxation decisions of the Agency involving the awarding of costs, in particular, Taxation of Bill of Costs 2013-220-R-2013TAX (Halifax Regional Municipality v. Canadian National Railway Company); Taxation of Bill of Costs 1999‑227-R-1998TAX/1999-48-R-1999TAX (Eagle Forest Products Limited Partnership v. Canadian National Railway Company); Taxation of Bill of Costs 2012‑157‑AT‑MV‑2011TAX (Terrance J. Green v. OC Transpo); Order No. 2008-AT-A-63 (Linda McKay-Panos v. Air Canada et al.) and Order No. 2008-AT-A-61 (Estate of Eric Norman et al. v. Air Canada et al.).

[19]

I have also examined the principles applied by the Courts relating to the awarding of costs including the numerous judgments brought to my attention by counsel for the applicant and the respondent as well as the arguments of counsel in this matter to arrive at what I consider to be a fair and reasonable assessment to the extent that costs claimed were reasonably necessary in the circumstances.

LDC’s REQUEST FOR SOLICITOR-CLIENT COSTS

[20]

LDC submits that CN’s failure to comply with the Interim Order warrants an award that fully compensates LDC for its costs in the Enforcement Proceedings. LDC submits that it would not have incurred costs relating to the Enforcement Proceedings if CN had simply complied with the Interim Order. LDC therefore requests that the Agency award LDC its costs of the Enforcement Proceedings on a solicitor-client basis.

[21]

CN responds that there is no justification for an award of solicitor-client costs and that the Agency ought to dismiss LDC’s request that costs be awarded on a full indemnity basis. CN requests that the Taxing Officer instead award costs to LDC based on Tariff B of the Federal Courts Rules which sets out the counsel fees and disbursements allowable on assessments for various services.

[22]

From the principles established by the Courts, I note that solicitor-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. In my assessment, I was guided both by this principle and the principle that costs must be reasonable in the circumstances and must have been incurred directly and necessarily for the purposes of the Enforcement Proceedings before the Agency. I have also carefully reviewed and analyzed each item submitted under the Bill of Costs as well as all submissions made by the parties.

BILL OF COSTS

[23]

LDC submitted a detailed Bill of Costs that outlines the time spent in preparation of the pleadings and materials relating to the Enforcement Proceedings of Interim Order dated May 2, 2014. The submission includes: detailed billings for counsel, Forrest C. Hume, the primary legal counsel assigned to the matter and billings for secondary counsel, P. John Landry, Peter Osadetz, and Alex Smith. The Bill of Costs submitted by LDC also includes an amount of $190.72 plus GST for disbursements. In total, LDC seeks $24,214.28 in costs.

[24]

In response, CN submits that costs should awarded to LDC based on Tariff B of the Federal Courts Rules which sets out the counsel fees and disbursements allowable on assessments for various services. Using Tariff B, CN suggests a total costs award of $2,700.00 for fees and disbursements.

POSITIONS OF THE PARTIES

Position of CN

[25]

CN does not specifically challenge the hourly rates of individual counsel in this matter, but rather challenges specific docket items as being inappropriate and for which a rate of $500 or more per hour is not reasonable. CN submits that these docket items are often interspersed with valid work entries and grouped into one global entry with a consolidated time amount. CN asserts that it is impossible to determine the amount of time spent on each task within that entry and, as a result, the entire docket should be reduced, as was done in Taxation of Bill of Costs 2013-220-R-2013T (Halifax Regional Municipality v. Canadian National Railway Company). CN also claims that the time spent on certain entries are excessive for the issues raised and the work product produced and that there was a significant amount of unnecessary duplication of work and that time spent by second, and even third, counsel should be disallowed or at least significantly discounted. CN adds that certain dockets are unrelated to the Enforcement Proceedings and, as such, should be disallowed.

[26]

In particular, CN challenges the following specific docket items submitted by LDC:

Time of John Landry

[27]

CN states that from a review of Mr. Landry’s time entries, it is evident that the majority of his time was spent reviewing and discussing issues during lengthy meetings with Mr. Hume. CN states that Mr. Landry essentially acted in a “consultant-type” role, which should be unnecessary given Mr. Hume’s 34 years of experience in transportation law and litigation specializing in railway matters.

The “Gonta Letter”

[28]

CN disputes all time billed for work responding to CN’s August 29, 2014 letter from Andy Gonta (“Gonta letter”). In particular, CN claims that the Gonta letter is entirely irrelevant to the enforcement proceedings as this letter simply explains CN’s new car allocation methodology. CN submits that any time billed for work responding to this letter should not be considered or reimbursed to LDC as part of these proceedings.

Time of Alex Smith

[29]

CN disputes all time spent by Alex Smith for reviewing and filing documents as he performed no substantive work nor produced any useful tangible product. CN submits that it should not be compelled to pay for any of this duplicated time.

Time of Peter Osadetz

[30]

CN submits that the tasks billed by Mr. Osadetz could have been performed by a legal assistant or paralegal and therefore CN should not be required to pay nearly $300 per hour for this work.

Time of Forrest Hume

[31]

CN submits that the time spent in preparing certain documents are excessive for the issues raised and the work product produced. CN maintains that other tasks could have been performed by someone more junior to Mr. Hume at a significantly lower billing rate and that it is unreasonable to expect CN to reimburse LDC for these charges.

Position of LDC

[32]

LDC submits the following:

Time of John Landry

[33]

LDC states that Mr. Landry spent only 1.5 hours assisting in the preparation of LDC’s submissions and as he has a great deal of expertise in regulatory litigation involving complex matters, the modest amount of time he spent providing assistance was reasonable.

The “Gonta Letter”

[34]

LDC states that in the Gonta letter, CN falsely stated that it was complying with the Agency’s Interim Order and that Mr. Hume’s September 4, 2014 letter was filed with the Agency specifically to correct this incorrect statement so that the Agency would not be misled in the Enforcement Proceedings.

Time of Alex Smith

[35]

LDC makes no specific comment in relation to the time spent by Alex Smith.

Time of Peter Osadetz

[36]

LDC submits that generally legal assistants and paralegals are not notaries public or commissioners for oaths entitled to take affidavits. LDC maintains that given the importance of the matter, the speed with which it had to be done, and the fact that the affidavit had to be sworn in another city, Mr. Hume preferred to entrust this matter to an associate rather than a student‑at‑law. LDC argues that this was a reasonable decision that Mr. Hume was entitled to make.

Time of Forrest Hume

[37]

LDC submits that CN’s criticism that Mr. Hume should have delegated certain tasks to a more junior lawyer overlooks the technical nature of the exercise, and the urgency and crucial importance to LDC of eliminating the threat to its livelihood occasioned by CN’s continued breaches of the Interim Order. With respect to CN’s implication that Mr. Hume performed inappropriate administrative tasks in the course of revising or drafting documents, LDC confirms that Mr. Hume had administrative support from a legal assistant when drafting LDC’s submissions in the matter and did not charge CN for her time. LDC submits that the central question in the Interim Order was highly complex and that Mr. Hume’s knowledge and expertise with respect to railway operations enabled him to master and address the evidentiary issues at far more quickly and therefore at lower total cost than could have been achieved by a more junior lawyer. With respect to CN’s comment that LDC counsel spent an excessive amount of time preparing replies to CN’s submissions, LDC states that much of its submissions were devoted to correcting CN’s numerous false and misleading statements and that CN cannot now complain about having to pay for the time it forced LDC’s counsel to spend to ensure that the Agency made its decision on the basis of accurate information.

[38]

LDC submits that its counsel spent only 42.7 hours seeking enforcement of the Interim Order and successfully seeking an award of costs. LDC states that considering that it was required to prepare and file five detailed submissions and one affidavit covering a highly technical area of railway operations while under significant time pressure, the time that LDC counsel spent on the file was entirely reasonable.

ASSESSMENT

[39]

In making my determination as to the quantum to be awarded, I have been guided by the principles established in previous Agency decisions that costs are generally compensatory in nature and should reflect the costs that the parties actually incurred in the matter. I have also taken into consideration various factors including the fact that CN’s non-compliance with the Interim Order resulted in LDC having to initiate Enforcement Proceedings. As a result, I find that it is appropriate in the circumstances of this case to allow 75 percent of all costs claimed by LDC counsel in this matter. However, the costs must also be reasonable in the circumstances and must have been incurred directly and necessarily for the purposes of the proceeding.

Specific docket items for Forrest Hume

[40]

I allow all dockets with the exception of the following dockets which I disallow in their entirety:

October 31, 2014 – Invoice No. 1500877 – Docket of September 2, 2014

[41]

Initial review of letter from A. Gonta – I accept CN’s submission that the Gonta letter is not directly and necessarily related to the Enforcement Proceedings in this matter but rather is a letter advising that CN is changing its allocation methodology for CN-supplied Western grain hopper cars. In any event, that same letter formed the basis of a complaint by LDC against CN which the Agency dismissed in a Confidential Decision dated March 12, 2015. Given that this docket is grouped together with other dockets, I will apply the principle used in Taxation of Bill of Costs 2013‑220-R-2013TAX (Halifax Regional Municipality v. Canadian National Railway Company) where the taxing officer disallowed the entire docket where items were grouped together. I therefore disallow 4.2 hours for this docket.

October 31, 2014 - Invoice No. 1500877 – September 3, 2014

[42]

Preparation of a draft covering letter to accompany CN’s August 29, 2014 letter to LDC – CN’s August 29, 2014 letter is the Gonta letter which, as previously stated, I find is not directly related to the Enforcement Proceedings and, as such, I disallow this docket. This docket item was grouped together with other docket items; I will disallow the entire docket. I therefore disallow 2.2 hours for this docket.

October 31, 2014 – Invoice No. 1500877 – September 23, 2014

[43]

Receipt of the Agency’s decision re: submissions for costs. In Order No. 2008-AT-A-61 (The Estate of Eric Norman et al. v. Air Canada), the taxing officer disallowed costs claimed for review of an Agency decision. I agree that receipt and review of the Agency’s decision re: submission for costs is not a cost that should be reimbursed by CN. As a result, I disallow 2.2 hours for this docket.

October 31, 2014 – Invoice No. 1500886 – September 24, 2014

[44]

Receipt of CN’s submission on costs; preparation of LDC’s draft reply to CN’s submissions on costs. Given that this is not directly related to LDC’s application for enforcement of the Interim Order, I disallow 2.0 hours for this docket.

October 31, 2014 – Invoice No. 1500886 – September 24, 2014

[45]

Conference call with C. Rubin and others re: the Agency’s decision on enforcement of the Interim Order – As previously stated, in Order No. 2008-AT-A-61 (The Estate of Eric Norman et al. v. Air Canada), the taxing officer disallowed costs claimed for a review of an Agency decision. I agree that a review of the Agency’s decision on enforcement of the Interim Order is not a cost that should be reimbursed by CN. As a result, I disallow 2.0 hours for this docket.

[46]

In total, I disallow 10.6 hours of the hours claimed by Mr. Hume.

[47]

Given that Mr. Hume has claimed 36.8 hours, I will allow 26.2 hours.

Specific docket items for Mr. Landry, Mr. Osedetz and Mr. Smith

[48]

I find that the five hours claimed collectively for Mr. Landry, Mr. Osedetz, and Mr. Smith are not unreasonable and were incurred directly and necessarily in relation to the Enforcement Proceedings before the Agency and therefore allow all costs at 75 percent.

Summary – Counsel fees

[49]

In summary, I allow the following costs for LDC counsel:

Forrest Hume: 26.2 hours at $575 per hour = $15,065.00 x 75% = $11,298.75

P. John Landry: 1.5 hours at $525 per hour = $787.50 x 75% = $590.63

Peter Osadetz: 1.2 hours at $290 per hour = $348.00 x 75% = $261.00

Alex Smith: 2.3 hours at $250 per hour = $575.00 x 75% = $431.25

DISBURSEMENTS

[50]

LDC submitted the following disbursements:

Courier charges: $68.07

Long distance calls: $122.65

Total Disbursements: $190.72

[51]

Given that CN has not disputed the disbursements submitted by LDC, I allow disbursements in the amount of $190.72.

LDC’s REQUEST FOR COSTS OF THE TAXATION

[52]

LDC, in its reply dated June 11, 2015, has requested its costs relating to the taxation of costs in this matter. LDC states that CN’s insinuation that LDC’s counsel overcharged its client in respect of this matter is shameful and insulting and, in light of the nature of CN’s cost submission, LDC requests that I also award the costs of this taxation in an amount that I consider reasonable.

[53]

Given that LDC made its request for costs of the taxation in its final reply, CN has not had an opportunity to respond to the request. In any event, there are very few, if any, previous Agency taxations of bill of costs where the taxing officer awarded costs related to the taxation of costs. I therefore deny LDC’s request for costs.

COSTS AS TAXED

[54]

I tax the fees and disbursements as follows:

COUNSEL FEES:

Forrest Hume: $11,298.75

P. John Landry: $590.63

Peter Osadetz: $261.00

Alex Smith: $431.25

TOTAL COUNSEL FEES: $12,581.63

DISBURSEMENTS: $192.72

SUBTOTAL: $12,774.35

GST: $638.72

TOTAL: $13,413.07

(signed)

William G. McMurray

Taxing Officer