File No.: CT-2005-006 COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; IN THE MATTER OF an application by B-Filer Inc., B-Filer Inc. doing business as GPA Y GuaranteedPayment and Npay Inc. for an order pursuant to section 103.1 granting leave to make application under sections 75 and 77 of the Competition Act;
AND IN THE MATTER OF an application by B-Filer Inc., B-Filer Inc. doing business as GPA Y GuaranteedPayment and Npay Inc. for an interim order pursuant to section 104 of the Competition Act.
BETWEEN: B-FILER INC., B-FILER INC. doing business as GPAY GUARANTEED PAYMENT and NPAY INC.
-and-
THE BANK OF NOVA SCOTIA Respondent • COMPmftON TlllUNAl Applicants' Responding Costs Sub mi Slftlll'NAL DE LA coNCUIRENcE p f R I 0 September 21, 2007 l SEP D Affleck Greene Orr LLP E u 0 Barristers & Solicitors IEGISTIAI - T ' 200 - 365 Bay Street ON OTTA W A, ONT,. Toronto, M5H 2Vl Michael Osborne T 416-360-5919 F 416-360-5960 E mosbome@agolaw.com
Jennifer Cantwell T 416-360-1485 F 416-360-5960 E jcantwell@agolaw.com
Edy, Dalton 800-1015 4 St. S.W. Calgary, AB, T2R IJ4 Sharon J. Dalton
Solicitors for the Applicants
Applicants
T 403-263-3200 Ext: 105 F 403-263-3202 E sjdalton@edydalton.com
A. Overview 1. The Tribunal has directed that costs shall be awarded as a lump sum, but based on the top end of Column IV in Tariff A, and that a 150% multiplier be applied to the counsel fees after the date of Scotiabank's offer to settle.
2. Scotiabank's new bill of costs is inconsistent with Column IV in a number of respects, resulting in a significant overclaim which should be deducted.
3. B-Filer should be awarded $7,365.09 for costs its motion to amend its pleading. 4. In the result, the amount payable to Scotiabank for costs should be $812,851.37. B. Repeated claims under item A2 5. The description of item A2 on the tariff makes it clear that this item can be claimed only once. It cannot be claimed repeatedly in respect of each document filed. The description reads: Preparation and filing of all defences, replies, counterclaims or respondents' records and materials. [Emphasis added]
Tariff A, item A2 6. As well, Item A2 cannot be claimed a second time for preparation and filing of an amended response. Item A3 deals with amendments, and allows a claim only where the amendment is necessitated by a new or amended originating document, pleading, notice or affidavit of another party. Tariff A, item A3 7. Scotiabank has claimed Item A2 eight times in Part I of its Bill of Costs, that is, once for its Response and seven times for expert affidavits. Scotiabank is entitled to claim Item A2 once.
2 8. Scotiabank has claimed Item A2 a further six times in Part II of its Bill of Costs, once for its amending its Response, and five times for reply expert affidavits. None of these claims is allowable under Item A2.
9. The following amounts should thus be deducted: a) From Part I: 7 x $2,160 = $15,120. b) From Part II: 6 x $2,160 = $12,960 (before 150% multiplier) or $19,440 (after multiplier).
C. Overclaim for preparation 10. Scotiabank claims 2 x 9 units under Item Dl3(b) (mis-identifed as Item El3 in Scotiabank's Bill of Costs), that is, for preparation for hearing per day in Court after the first day.
11. However, Column IV allows a maximum of 6 units, not 9, for this item. 12. The correct claim is thus 2 x 6 x 16, or $23,040, not $34,560 as claimed. The difference of $11,520 (before multiplier), or $17,280 (after multiplier) should thus be deducted from Part II of Scotiabank's Bill of Costs.
D. Overclaim for motion to amend Response 13. Scotiabank proposes that no costs should be awarded either for its motion in writing to amend its Response, or B-Filer's motion to exclude Profesor Sadinsky's affidavit.
14. B-Filer agrees. 15. Scotiabank appears to have included its motion to amend its Response under Item BS, perhaps inadvertently. This amount, $2,160 (before multiplier) or $3,240 (after multiplier) should be deducted from Part II of Scotiabank's Bill of Costs.
3 E. Overclaim for counsel fee at hearing 16. Item El4(a), Column IV, permits a claim of up to 4 units per hour in Court for the first counsel. Item El4(b) provides that, where the Court directs, 50% of this amount can be paid for a second counsel.
17 . The Tribunal has allowed a claim for counsel fees for 2 Yz counsel. Based on Item El 4, the full counsel fee should be assessed for Scotiabank's first counsel, but the counsel fee for the remaining one and a half counsel should be assessed at 50% of the amount assessed for the first counsel, in accordance with Item El4.
18. Scotiabank has not calculated the counsel fee in accordance with Item El4. It simply claimed 2.5 times the full counsel fee for the first counsel. This is equivalent to a claim for 4 counsel under Item El4, instead of the 2 Yz allowed by the Tribunal.
19. As well, when the 150% multiplier is applied to Scotiabank's counsel fee claim of $142,800, the result, $214,200, exceeds by a considerable amount Scotiabank' s solicitor-and-client costs of attending the hearing of $166,628. $166,628 is the total of the claims under Item El4 on page 12 of Scotiabank's first Bill of Costs.
20. The correct calculation is as follows: Item Description El4(a) Counsel fee - 1st counsel El4(b) Counsel fee - 2nd counsel 1 Yz counsel@ 50% of Item El4(a) Total counsel fee
Units Hours/Days Amount 4 119 $57,120 $42,840 $99,960
4 21. As the amount claimed by Scotiabank is $142,800, the difference, $42,840 (before multiplier) or $64,260 (after multiplier), should be deducted from Part II of Scotiabank's Bill of Costs.
F. Over claim for travel to attend the hearing 22. Item G24 allows an award of up to 7 units (under Column IV) for travel to attend a hearing.
23. Scotiabank has claimed the full 7 units, times 2.5 counsel, for each of the trips to and from Ottawa. That is, it claims 14 units per counsel per return trip. Scotiabank then makes this claim for each return trip (4 in total).
24. There nothing in the description of Item G24 that supports claiming travel costs more than once per hearing or trial. Thus Scotiabank's total claim under Item G24 should be 2.5 x 7 units, or $2,100. The remainder, $14,700 (before multiplier), or $22,050 (after multiplier), should be deducted from Part II of Scotiabank's Bill of Costs.
25. In the alternative, if the fact that the hearing spanned four weeks means that Item G24 can be claimed more than once, it should only be claimed once, not twice, per return trip. In that case, Scotiabank's total claim under Item G24 would be 2.5 x 7 units x 4 return trips, or $8,400. The remainder, $8,400 (before multiplier), or $12,600 (after multiplier) should be deducted.
G. B-Filer's costs for motion to amend 26. In its decision on the B-Filer's motion to amend, the Tribunal did not specify the basis for assessing B-Filer's costs. B-Filer submits that as Scotiabank has been awarded costs for two counsel, it is appropriate that B-Filer's costs on this motion be calculated on the same basis.
27. B-Filer's costs on this motion, calculated at the top of Column III, for two counsel, are $7,365.09, including disbursements. The Bill of Costs is attached as Schedule A.
5 H. Ryan Woodrow's expenses 28. B-Filer acknowledges that it undertook to pay these expenses. I. Conclusion 29. After the deductions referred to above and B-Filer's costs on the motion to amend are subtracted, Scotiabank's costs are $812,851.37 in total, as shown in the calculation attached as Schedule B.
ALL OF WHICH IS RESPECTFULLY SUBMITTED September 21, 2007 :Micfiae{ Osborne
W. Michael G. Osborne Counsel to the Applicant
Schedule A Bill of Costs - Motion to Amend
Counsel Fees Item Description No. of Hours lawyers BS Preparation and filing of a 2 contested motion B6 Appearance on a motion, 2 per hour G24 Travel by counsel to 2 attend motion Subtotal fees GST Total fees Disbusements Travel - Air Travel - Hotel Travel - Meals Travel - Taxi Quicklaw Photocopies GST on taxable disbursements Total disbursements Total costs Note: Travel disbursements are for two lawyers.
Units Amount 4 $ 960.00 3 3 $ 2,160.00 5 $ 1,200.00 $ 4,320.00 $ 259.20 $ 4,579.20 $ 1,507.30 $ 557.28 $ 209.30 $ 233.00 $ 63.22 $ 200.00 $ 15.79 $ 2,785.89 $ 7,365.09
Schedule B Re-calculation of Scotiabank Bill of Costs
Fees Part 1 - Pre-offe r 1 Scotiabank's subtotal fees pre-offer 2 Less deduction for Item A2 overclai 3 Revised subtotal fees pre-offe Part 2 - Post-offer 4 Scotiabank's subtotal fees (before 150% multiplier) less deductions for: 5 Item A2 overclaim $ 6 Overclaim for preparation (Item D 13) $ 7 Overclaim for motion to amend (Item BS ) $ 8 Overclaim for counsel fee at hearing (Item $ El4) 9 Overclaim for travel $ 10 Total deductions 11 Revised subtotal fees (before 150% multiplier) 12 Revised subtotal fees (after 150% multiplier) Fees and Disbursements 13 Revised subtotal fees (lines 3 + 12) 14 Subtotal taxable disbursements (as claimed) 15 Subtotal non-taxable disbursements (as claimed) 16 GST on fees (revised) (line 13 x 6%) 17 GST on disbursements (as claimed) 18 Ryan Woodrow's expenses (as claimed) 19 Total costs (revised) 20 Less: B-Filer's costs - motion to amen 21 Costs payable to Scotiabank
$ 113,520.00 $ 15,120.00 $ 98,400.00 $ 224,700.00 12,960.00 11,520.00 2,160.00 42,840.00 14,700.00 $ 84, 180.00 $ 140,520.00 $ 210,780.00 $ 309,180.00 $ 441,847.00 $ 21,616.72 $ 18,550.80 $ 26,510.83 $ 2,511.11 $ 820,216.46 $ 7,365.09 $ 812,851.37
Court File No. CT-2005-006 COMPETITION TRIBUNAL BETWEEN: 8-FILER INC., 8-FILER INC. doing business as GPA Y GUARANTEEDPAY MENT and NPA Y INC. Applicants -and-
THE BANK OF NOV A SCOTIA Respondent
Applicants' Responding Costs Submissions
AFFLECK GREENE ORR LLP Barristers & Solicitors 200 - 365 Bay Street Toronto, ON M5H 2Vl
Michael Osborne T 416-360-5919 F 416-360-5960
E mosbome@agolaw.com
Jennifer Cantwell T 416-360-F 416-360-5960
E jcantwell@agolaw.com
EDY, DALTON 800-1015 4 ST. S.W. CALGARY, AB, T2R 1J4
Sharon J. Dalton T 403-263-3200 EXT:l05 F 403-263-3202
E jdalton@edydalton.com
Solicitors for the Applicants