AlliedSignal Inc. v. Dupont Canada Inc.
T-2234-89
Reinhardt T.O.
11/5/98
70 pp.
Trial, appeal-Highly complex patent suit relating to blended polyamide/polyolefin film of low crystallinity, suitable for use in preparation of sheet moulding compound-Case involving x-ray diffraction, nuclear magnetic resonance, infrared spectroscopy, density gradient column and differential scanning calorimetry-Case requiring considerable additional effort to organize and explain different analytical techniques and experiments-Trial lasting 12 days; 71 documents referred to as exhibits and 10 expert witnesses called-Series of inter partes tests conducted, some of which videotaped for possible tendering at trial as exhibits-Upon being successful at trial following Court of Appeal's decision, plaintiff's motion for increased costs allowed-"Without prejudice" letter written by DuPont's counsel to settle certain items claimed in plaintiff's earlier draft bill of costs will be used only as reinforcement of any other available piece of evidence for expenses claimed and not by and of itself to prove reasonableness or necessity of any particular item-Plaintiff claiming expenses for both counsel for six meetings prior to examination for discovery, three of which out of town-Joyal J.'s order for increased costs unclear as to number of counsel intended, as counsel both singular and plural-Complexity and importance of case such that reasonable for two counsel to meet with client-Amounts claimed allowed-Miscellaneous expenses (photocopy charges for 4,000 copies at $0.08) allowed as being reasonable and necessary in circumstances: Melo's Food Centre Ltd. v. Borges Food Ltd., [1996] F.C.J. No. 1072 (T.D.) (QL)-Photocopying disbursements must be shown to be essential-Computer logs and schedules more and more frequently attached to supporting affidavits could be made more detailed and comprehensive so as to include such convenient information as title of document photocopied, number of pages photocopied and number of copies produced and destination-$75 awarded for preparation and appearance on interlocutory motions (motion in writing, on consent, silent as to costs) as Rules applicable to taxation those in force at inception of action (1989), and as Rule at time did provide that costs follow event-Travel and living expenses of two counsel relative to complex and numerous pre-trial tests allowed as reasonable and necessary in proceedings and wording of Joyal J.'s order not sufficiently restrictive as would support interpretation for only one counsel-As to expert witness's travel and living expenses, onus on counsel seeking payment of expert witness's charges to justify expense in sense that losing side should not be required to pay costs not reasonable having regard to importance of witness's evidence to outcome of trial and complexity of expertise: Angelstad v. Frederick's Estate (1989), 80 Sask. R. 274 (Q.B.)-Expert witness's travel and living expenses reasonable and allowed in full-Guidelines as to fees: hiring of expert must, in circumstances existing at time, be prudent and reasonable representation of client; hiring of expert must not be blank cheque for award; what reliance placed of expert's testimony by Trial Judge?-Guidelines met herein-Actual fees exacted by expert may seem high, but commensurate with expert's credentials and in keeping with what market for such expertise able to bear-Amount allowed as claimed-Fees for in-house pre-trial inter partes tests conducted by plaintiff-Pre-trial tests essential to conduct of litigation-Open to plaintiff to carry out tests internally in circumstances of litigation and costs associated with tests ought to be recovered from defendant if plaintiff can satisfy Court of actual costs of pre-trial experiments-As plaintiff herein unable to establish actual costs of tests to company, entire claim therefor rejected-In order for expenses to be allowed for "representative of client" within meaning of Joyal J.'s order, person should have been called to give testimony at discovery or trial: Aerlinte Eireann Teoranta v. Canada, [1993] F.C.J. No. 1462 (T.D.) (QL)-Defendant should not be saddled with costs associated with travel (and living expenses) to Toronto of paralegal employed at Ottawa office of counsel for plaintiff-No case law on use and assistance of paralegals in similar context, but Joyal J.'s order speaks only of witnesses and counsel-Services of paralegals included and subsumed into services provided by counsel and therefore overhead of firm-Comparable to secretaries, librarians, binding clerks and other office clerks-Counsel's hotel charges beginning one week before commencement of trial not excessive in view of complexity of case-Would not be reasonable to award higher daily rate for expert's attendance at trial (plaintiff asking for US $2,000) than daily rate charged for preparation (US $1,200), so rate of US $1,200 per day allowed, even though this has been found to possibly be too generous: Aerlinte Eireann Teoranta v. Canada, [1993] F.C.J. No. 1462 (T.D.) (QL)-Revised bill of costs presented at $412,084.59 taxed and allowed at $258,754.13.