Pierre-Olivier Lacroix, greffier des appels à Québec

Taxation of a bill of costs.

In their bill of costs, the appellants claim $38,194 for the preparation of the brief. The respondent opposes this claim and argues that the amount should be reduced to $18,491. The respondent alleges that the appellants seek reimbursement of costs associated with preparing unnecessary copies of the brief and that the preparation fees do not meet the reasonableness test.

According to the case law, the party entitled to legal costs can claim fees for preparing the copies of the brief that were filed with the court office in addition to the copies sent to the other parties and those produced for its own use. In this case, the appellant is not entitled to the fees for the copies sent to the respondent because the parties had agreed that notification to the respondent would be made by technological means only, without a paper copy being provided. Therefore, the respondent is not required to pay the fees incurred to prepare these two copies. The copies were certainly useful, but the disbursements related to their preparation were not necessary for the appeal record.

Regarding the reasonableness of the preparation fees, section 88 of the Regulation of the Court of Appeal of Quebec in Civil Matters (CQLR, c. C-25.01, r. 0.2.01) provides that it must be ensured that any disbursements not set by tariff are reasonable. For this purpose, the notice of the Chief Justice dated May 8, 2013, entitled Taxation for disbursements with respect to in-house factums, written arguments and books of authorities is the starting point for this analysis. The notice provides for a rate of $0.33 per page for “in-house factums”, while the case law has found that an increase generally in the range of 20% is reasonable when they are prepared by a specialized company. This approach is not perfect, however, because it is based on a notice that is no longer entirely in step with the current market. First, the rates in the notice are from 2013, when it came into force. Second, the “per page” method of calculation is more germane to fees for preparing paper copies of briefs.

In this case, the application of the reference rate and the increase would entitle the appellants to $13,397 for the preparation of the brief, which is less than half the amount actually paid. This is an unreasonable result, established according to a rate that is out of date and a method of calculation that does not reflect current practice. Clearly there is a need to reflect on the appropriate approach to ascertaining the reasonableness of disbursements incurred for the physical preparation of briefs. For the moment, however, the disbursements will be set at an amount that is deemed reasonable, $24,000.

Text of the decision: http://citoyens.soquij.qc.ca