Aerlinte Eireann Teoranta v. Canada
T-1250-80
Wendt T.O.
14/12/93
16 pp.
Taxation of defendants' costs on party-and-party basis -- Defendants claiming $3,106,147.71 as expenses of expert witnesses -- Issues at trial involved amounts federal government charging air carriers as landing fees -- Court held regulations intra vires, not null and void because discriminatory -- Court dismissed plaintiffs' action, ordering defendants recover costs of action to be taxed from and against plaintiffs jointly and severally -- (1) Whether work done by expert witnesses going beyond role of expert witnesses -- Senior Prothonotary directing reasonable payment for services performed by expert witnesses -- Services performed must relate to preparing to give evidence and giving evidence, otherwise extension of role of expert witnesses -- Preparation of expert's report reasonable within meaning of "preparing ... to give evidence": Smith v. The Queen, [1985] 1 C.T.C. 140 (F.C.T.D.) -- Uncontradicted evidence each of three witnesses retained to give testimony -- Roles evidentiary, not advisory -- All witnesses' costs subject to taxation, as related to preparing to testify and testifying in proceeding -- (2) Whether expert's account to be restricted to work done by expert personally -- Compensation at greater rate where witnesses assisted by support staff acknowledging cost of support staff -- In fact greater economy because research more costly if done personally by witness -- (3) Whether evidence going beyond pleadings -- Since Court finding evidence relevant, inappropriate to reject reasonable expenses associated with obtaining evidence -- (4) Whether expenses reasonable for services performed -- Experts' fees in proportion to those of counsel -- Relationship between counsel fees and expenses allowed for expert witnesses depending on circumstances of each case -- Amount defendants paid not unreasonable for services performed -- In view of extensive scope of work undertaken and relatively dismissive treatment of evidence by Trial Judge, inappropriate to transfer entire costs to losing party on party-and-party taxation -- Expenses herein claimed for expert witnesses fall into three categories: contractual fee for professional services; disbursements, including travel costs; administrative expenses -- Court looking at relationship of expert's testimony to award in determining whether amounts allowed on taxation reasonable -- Extent to which testimony relied on by Court relevant consideration -- Plaintiffs' liability for expenses of Gunders' evidence reduced by 50% having regard to relationship of testimony to determination of case, nature of services provided and expenses incurred, and liability of opposing party on party-and-party taxation -- Sufficient information to confirm expenses and disbursements paid to witnesses reasonable -- Administrative expenses substantiated, not arbitrary charge by defendants' solicitors -- As to other disbursements, appropriate for counsel to travel where necessary in course of litigation, and for such cost to be part of disbursements for which party be compensated -- Witnesses' expenses must not be of party incurred in course of litigation, but incurred in order to testify at trial, if costs to be recovered by losing party.