Taxation of Bill of Costs: 1998-AT-A-216 TAX

September 14, 1998

Applicant:
Lucie Lemieux-Brassard

Respondents:
Air Canada
Air Nova Inc. (hereinafter Air Nova)
Canadian Airlines International Ltd. carrying on business under the firm name and style of either Canadian Airlines International or Canadi*n (hereinafter Canadi*n)

Counsel for the Applicant:
David Baker

Counsel for the Respondents:
Louise-Hélène Sénécal, counsel for Air Canada and Air Nova
Kenneth Fredeen, counsel for Canadi*n

Taxing Officer:
Keith Penner

Award of Costs

This award arises from Decision No. 216-AT-A-1998 of the Canadian Transportation Agency (hereinafter the Agency) dated May 13, 1998 wherein the Agency determined that costs should be awarded to Ms. Lemieux-Brassard as a result of her substantial interest and responsible participation in an Agency oral hearing held in Montréal on September 24, 25 and 26, 1997 with Air Canada, Air Nova and Canadi*n and that Ms. Lemieux-Brassard's costs should be paid in equal parts by Air Canada, Air Nova and Canadi*n. Pursuant to that Decision, I was appointed as taxing officer. In that regard, I have conducted written pleadings to gather information on the issue of quantum of costs to be awarded, which included the filing of a Bill of Costs by Ms. Lemieux-Brassard, submissions by the respondents and subsequent comments from Ms. Lemieux-Brassard.

Background

Ms. Lemieux-Brassard filed an application on September 2, 1997 requesting an award of costs in advance of the hearing or, in the alternative, upon completion of the hearing. Following the review of submissions made by the applicant and respondents, the Agency issued Decision No. LET-A-251-1997 on September 8, 1997, in which it stated that it would not make an interim award of costs, but that it would entertain submissions as to costs at the end of the hearing.

Following the hearing, Ms. Lemieux-Brassard filed an application with the Agency pursuant to section 25.1 of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA) requesting an award of costs for counsel and expert witness fees resulting from her participation in the hearing. The Agency, after considering submissions from the applicant and respondents, determined that costs should be awarded.

Principle Underlying Cost Award

In response to Ms. Lemieux-Brassard's request for an award of costs, the Agency stated in its Decision No. 216-AT-A-1998 that it took into consideration that she had a substantial interest in the proceeding, participated in a responsible way, made a significant contribution that was relevant to the proceeding and contributed to a better understanding of the issues by the Agency as well as all parties to the hearing.

It is noted that the applicant and respondents in the present application have submitted arguments on the principles and criteria to be followed by a taxing officer in order to assist in the determination of the amount of costs to be awarded.

In making my determination as to the quantum to be awarded, I have been 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 proceeding. I have applied this taxing principle in examining Ms. Lemieux-Brassard's claim for fees and disbursements, and in considering all submissions made by all parties.

Bill of Costs

Ms. Lemieux-Brassard submitted a Bill of Costs in the amount of $22,939.50. A breakdown of these expenses and disbursements is as follows:

Counsel fees - David Baker $20,059.00
Counsel disbursements $  1,080.50
Expert's fees - Eric Norman $  1,800.00
Total  $22,939.50

A) Counsel Fees: David Baker

Mr. Baker is Executive Director of the Advocacy Resource Centre for the Handicapped (hereinafter ARCH) and represented Ms. Lemieux-Brassard as her counsel throughout the proceedings and at the hearing.

The total amount of time claimed by Mr. Baker is 154.3 hours at a rate of $130.00 per hour for a total of $20,059.00 in counsel fees. This time includes his contribution to the Terms of Reference for the hearing, preparation for and during the hearing, participation at the hearing, travel time, preparation and submission of written final arguments and pleadings on the award of costs.

In reply, the respondents submit that the costs should not be awarded on a solicitor-client basis, but, as Air Canada and Air Nova stated, on a more objective basis. The respondents also submitted that in the absence of its own Tariff for costs, the Agency and the taxing officer should be guided by the Federal Court's Tariff B. Applying the mid-range of Tariff B, the respondents suggest awarding $7,700.00 for Ms. Lemieux-Brassard's counsel fees.

Air Canada and Air Nova further state that Mr. Baker is at the service of ARCH, a non-profit organization which is privately and publicly funded. They also believe that Ms. Lemieux-Brassard did not incur the costs of $20,059.00. Therefore, Air Canada and Air Nova submit that it would be more equitable to use an objective basis for the assessment of fees such as the Federal Court's Tariff B.

In response, Ms. Lemieux-Brassard states that while the actual costs of her participation in the proceedings will not be borne by her directly, the costs of her participation, precipitated by the failure of the respondents to properly accommodate her, and resulting in a benefit to the community at large, still exist. Ms. Lemieux-Brassard also submits that in accordance with the Supreme Court of Canada decision in Bell Canada v. Consumers' Association of Canada, [1986] 1 S.C.R. 190 where the Canadian Radio-Television and Telecommunications Commission's authority to award costs under section 73 of the National Transportation Act, R.S.C., 1970, c. N-17 was considered, a generous award of costs may be appropriate in a situation such as hers.

It is Ms. Lemieux-Brassard's understanding that the taxing officer will rely on her counsel's estimation of costs in the context of the nature of the hearing and her role in that hearing. She also points out that she was the only party to the hearing raising issues on behalf of the broader community of persons with disabilities. Ms. Lemieux-Brassard refers to Agency Decision No. 216-AT-A-1998 wherein the Agency noted that her participation "contributed to a better understanding of the issues by the Agency as well as all parties at the hearing".

ARCH, a legal resource centre for persons with disabilities, is a non-profit community legal clinic, dedicated to defending the rights of people with disabilities in Ontario. I am of the opinion that the participation of ARCH in the Agency's proceedings is desirable in view of its continuing interest and knowledge base concerning the rights of persons with disabilities. In view of this, ARCH is entitled to reimbursement of expenses regardless of either Mr. Baker's employment status with the organization or any arrangements with Ms. Lemieux-Brassard to absorb the costs which have been expended on her behalf.

I have reviewed the respondents' submissions with respect to Federal Court Tariff B and I have concluded that I am not bound by the tariff nor must I be guided by it in this case. In making my determination as to the quantum to be awarded, I have carefully reviewed and analysed each item submitted under the Bill of Costs as well as the respondents' submissions thereon and Ms. Lemieux-Brassard's subsequent comments.

I have reviewed Mr. Baker's submission of July 16, 1998 wherein he sets out a number of facts in support of his claimed hourly rate. In view of Mr. Baker's seniority and obvious expertise in public advocacy for persons with disabilities, and in view of the complexity of the issues raised, I accept $130.00 per hour as a reasonable rate for his fees.

While the Bill of Costs in this case provides 16 items to identify counsel's professional fees, I have grouped the various items into six categories, which are addressed separately as follows.

(i) Preparation Before the Hearing

While I have reviewed Mr. Baker's submission regarding pre-hearing preparation, and recognizing the number of specific matters he was required to address at the hearing, as defined in the Terms of Reference, I consider it reasonable to award two hours of preparation time for each hour spent at the hearing. As the duration of the hearing was 21 hours, I conclude that 42 hours is reasonable for counsel's preparation for the hearing.

In addition to the approved 42 hours, it is my opinion that five hours is a reasonable amount to be added for counsel's contribution to the Terms of Reference of the hearing, which I consider to be a unique stage in a hearing proceeding. A total of 47 hours is therefore approved for Mr. Baker's preparation before the hearing.

(ii) Preparation During the Hearing

I recognize that the broad important issues addressed during the hearing required Mr. Baker to prepare and question his own witnesses, as well as to prepare for his cross-examination of the respondents' witnesses. In addition, the respondents filed a substantial quantity of materials at the hearing. I find that the 10.6 hours claimed by Mr. Baker for his preparation time during the three-day hearing is reasonable.

(iii) Participation at the Hearing

I accept Mr. Baker's submission of 21 hours for participation at the hearing.

(iv) Travel

I find that the seven hours claimed for Mr. Baker's travel time between Toronto and Montréal is reasonable, based not only on actual flying time, but also on normally expected commuting times to travel to and from airports, as well as the advance check-in times required by the carriers.

(v) Final Arguments

Mr. Baker has claimed a total of 40.5 hours for the various items associated with the filing of closing arguments. I have reviewed the various submissions made by the applicant, the respondents, the expert and the union following the hearing and I have concluded that 29 hours is reasonable according to the following breakdown:

Review and reply to union submission 2 hours
Review of expert report 2 hours
Review responses to expert report and reply 2 hours
Preparation of applicant's submissions, including review of transcripts 12 hours
Review of responses and reply 11 hours
TOTAL 29 hours

(vi) Taxation

Mr. Baker has claimed 9.6 hours for the review of Agency Decisions and Bill of Costs. I have concluded that eight hours is reasonable. This is based on the understanding that the preparation of a Bill of Costs is normally considered an administrative task performed by office staff, but also recognizes the legalistic nature of the submissions made by Mr. Baker in support of the Bill of Costs.

Mr. Baker claimed $20,059.00 for professional fees (154.3 hours at $130.00 per hour). I have concluded, in light of the considerations outlined above, that 122.6 hours is reasonable.

Preparation Before the Hearing + Terms of Reference Input 47.0 hours
Preparation During the Hearing 10.6 hours
Participation at the Hearing 21.0 hours
Travel 7.0 hours
Final Arguments 29.0 hours
Taxation 8.0 hours
TOTAL 122.6 hours

At $130.00 per hour, the approved amount for Mr. Baker's legal fees therefore totals $15,938.00.

B) Counsel Disbursements

Mr. Baker claimed $1,080.50 for disbursements which were detailed in the Bill of Costs. However, the invoices submitted in support of this claim are for a total of $1,048.15.

It is my opinion that the accommodation chosen and the food expenses claimed are reasonable and are in accordance with Public Service standards.

From my examination, I am persuaded that all disbursements supported by the invoices are reasonable and were incurred necessarily and directly for the purposes of the proceeding.

Accordingly, $1,048.15 is allowed for Mr. Baker's disbursements.

C) Expert's Fees - Eric Norman

Mr. Baker submitted an account from their expert witness, Mr. Norman, in the amount of $1,800.00, being two days to prepare a statement of evidence, one day for his attendance at the hearing as a witness, and one and one-half days to prepare critiques of the training programs for Air Canada, Air Nova and Canadi*n. Mr. Norman claimed a total of 4.5 days at a rate of $400.00 per day.

I have reviewed the evidence with respect to Mr. Norman's qualifications and am of the opinion that Mr. Norman demonstrated an expertise concerning the transportation of persons with disabilities by air in Canada and contributed to the Agency's process. In view of his expertise, I accept the claimed rate of $400.00 per day. I also note that the respondents did not object to the claimed rate.

In reply, the respondents found the claim of two days hearing preparation to be excessive based on Mr. Norman's admission that he had not had the opportunity to read the documentation provided by the respondents prior to the hearing. As such, the respondents consider one day for preparation more appropriate. In response, Mr. Baker, on behalf of Ms. Lemieux-Brassard, stated that the training manuals and videos were not available when Mr. Norman submitted his statement of evidence. I note that the records support this claim.

I am in agreement with the respondents that one day to prepare his statement of evidence for his attendance at the hearing is reasonable in this case.

With respect to the one-day claim for Mr. Norman's attendance at the hearing, Air Canada and Air Nova contend that Mr. Norman was present for only one half of the first day of the hearing, while Ms. Lemieux-Brassard submits that he was present for the full day. Air Canada and Air Nova state that Canadi*n's counsel noted Mr. Norman's absence in the afternoon and expressed his surprise and disappointment. Canadi*n states that its counsel noted during the hearing that Mr. Norman chose to be absent for the evidence given by the respondents. Furthermore, Canadi*n questions the value of Mr. Norman's evidence and in particular his comments relating to the evidence of the respondents.

A review of the hearing transcripts reveals that the matter of Mr. Norman's absence from the hearing was not raised until the morning of September 25, 1997. At that time, Canadi*n's counsel voiced his disappointment that Mr. Norman was not present that morning to hear the carrier's witness who had presented a review of its training manual. In response, Mr. Baker explained that Mr. Norman had meetings scheduled for September 25 and 26, which he could not change. I therefore find that the claim for Mr. Norman's one-day attendance at the hearing is reasonable.

As for the last item, the respondents submitted that there is no specific mention in Mr. Norman's written arguments to support a "preparation" or a "critique" of the training programs. In response, Mr. Baker, on behalf of Ms. Lemieux-Brassard, explained that in order to prepare this report, it was necessary for Mr. Norman to view two videos, review two training manuals and read the hearing transcripts. Upon review of Mr. Norman's written submission, it is my opinion that he did provide critiques of the respondents' training programs. I therefore reject the respondents' objections on this matter, and allow as reasonable one day for Mr. Norman to prepare critiques of the training programs.

In light of the considerations outlined above, I find that 3 days is a reasonable amount of time for Mr. Norman's participation in the Agency's proceedings. Accordingly, at a rate of $400.00 per day, expert witness fees of $1,200.00 are allowed.

Costs as Taxed

I hereby tax the fees and disbursements as follows:

Fees
Counsel fees $15,938.00
Disbursements $ 1,048.15
Expert's fees $ 1,200.00
Total  $18,186.15

The costs will be borne equally by Air Canada, Air Nova and Canadi*n, and thus the amount of $6,062.05 is payable by each carrier to the applicant.

Keith Penner - Taxing Officer

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