Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
T-578-13
FEDERAL COURT
B ETWEEN:
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YORK UNIVERSITY ~li?':t5estl LrEri;L'S
WRITTEN REPRESENTATIONS
A. Overview
1. The plaintiff, Access Copyright ("Access"), was awarded its costs of the action in the
2. In accordance with Rule 400(4), Access requests that the trial judge order the defendant,
York University ("York"), to pay the lump sum of $549,703.00 to Access within 30 days
of that order to satisfy the costs award. That sum is comprised of $321,000.00 to account
for the expenses incurred by Access to employ its litigation lawyers for this litigation; and
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I 3. Alternatively, if the trial judge is disinclined to make a lump sum award of costs, Access
requests, pursuant to Rule 400(5), that the trial judge make directions to the Assessment
Officer that are set out in Schedule "A" to the Notice of Motion.
4. The practice of awarding lump sum costs as a percentage of actual costs reasonably
incurred is well established in the jurisprudence. They save the parties time and money and
further the objective of securing the just, most expeditious and least expensive
I 5. Increased costs in the form of lump sum awards tend to range between 25% and 50% of
actual fees.2
6. Awards of lump sum costs are not restricted to complex cases. Lump sum awards of costs
are appropriate in all cases, whether simple or complex, when the successful party can
7. Provided they are supported by the evidence, all reasonably necessary expenditures
paras. 11, 16
t Nova Chemicals Corporation v The Dow Chemical Company, 2017 FCA 25 @
Tab B
2 Ibid, @ para 17.
3 1bid, @ paras. 12-13
4 II71C~, @ para. 20
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C. Rule 400(3) factors to be considered in the exercise of the trial judge's discretion
8. A consideration ofthe factors guiding the trial judge's discretion in awarding costs supports
a lump sum award approximating 50% of the expenses incurred by Access to employ its
salaried litigation counsel to represent Access in the litigation; and 100% of the out-of-
pocket disbursements disclosed in the draft Bills of CostsS and supported by the court's
9. Access was entirely successful in respect to all issues before the court in Phase I of these
proceedings.
10. As acknowledged by the trialjudge,the case was "difficult and complex" involving "vast"
amounts of evidence.
2013
1 1. The issues raised in the action were of critical importance to Access. In an October
about the
article published in the AUCC's publication University Affairs8,the author wrote
case as follows:
"The stakes are equally high for Access Copyright. If the fair dealing guidelines are
"It
allowed to stand, this could change the way the copyright collective operates.
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really impacts the relevance of Access Copyright and its whole
existence', said Mr.
[Gregory] Juliano [general counsel for the University of Manit
oba]."
"
' I think it's very significant', said Gregory Julian
o, general counsel for the
University of Manitoba. `What's really at the heart of the chall
enge is the meaning
of fair dealing,' which he called `a big issue' not only for
York but all univer sities
that have adopted similar fair dealing guidelines. `If York
was wrong, everybody's
wrong."'
~~
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ssed by others
(d) Rule 400(h) interest in the litigation expre
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19. As discussed above, many post-secondary educational institutions were also interested in
having the issues litigated as evidenced by their financial contributions to York's legal
costs.
20. "
The issues were also of interest to elementary and secondary educat'tonal institutions(K-
K-12 institutions.11
21. In paragraph 16(a) of its Statement of Defence and Counterclaim, York alleged that a
22. Despite making that allegation in September 2013, York withheld production of the bulk
of the documentation that allegedly supported that position until April 2016 less than 6
weeks before trial. In the words of Case Management Judge Aalto, York's failure to timely
23. To address these new productions, one of Access' counsel, Ms. Jessica Zagar, was required
to halt all other trial preparation and devote almost the entirety of the six weeks before
trial:l) reviewing these productions; and 2) preparing for and conducting 14 hours (over
1 1 See Court docket no. 44 Order dated April 1, 2014 dismissing CMEC's motion to intervene in
the action.
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three days in the 10-day period immediately preceding the first day oftrial) ofexaminations
24. In addition, to mitigate the prejudice to Access from York's late production of documents,
Access retained the services ofexternal counse112 to assist in the review ofthese documents
25. Ultimately, as found by the trial judge in his reasons14, "York's reliance on permissions
26. Indeed, York conceded -but only during oral argument on the 18th day of trial- that its
evidence on licensing information was inaccurate and its ability to marry up copies with
upon.ls
the relevant licence or permission was impossible to rely
27. York's conduct in withholding 1000+ documents until 6 weeks before trial, that required
Access to unnecessarily devote critical time and expense to an issue that York ultimately
conceded on day 18 of a 19 day trial -could not be proven, constituted conduct that
12 Invoice from Bennett Jones LLP, E~ibit"G" to Affidavit of R. LevY> MR> Tab 2G
13 Access letter to court dated April 22,2016, Exhibit"H" to Affidavit of R. Levy, MR,Tab 2H
'4 Reasons For Judgment dated July 12, 2017, para. 91
Is Reasons For Judgment dated July 12, 2017, pars. 287
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(~ Rule 400(n.l) was the expert evidence justified?
nature of
28. Access retained two expert witnesses, Benoit Gauthier and Michael Dobner. The
d by
the litigation and the complexity of the issues in dispute justified the expense incurre
ing.
29. The trial judge found16,"the expert evidence ofthe plaintiff more credible and compell
flaws than the
It was more rigorous, coherent and consistent and it suffered from fewer
~ his evidence
30. In respect to the plaintiff's expert witness, Mr. Dobner,the trial judge found~
assistance to the
to be "thorough, thoughtful and compelling" and was of "considerable
expert witnesses,
court". Whenever his evidence conflicted with the evidence of York's
r, whenever his
31. Similarly, in respect to the plaintiffls expert witness, Benoit Gauthie
trial judge preferred the
evidence conflicted with that of York's expert witnesses, the
evidence of Gauthier.19
l Dobner .20
PricewaterhouseCoopers LLP ("pwc")for the services of Michae
86
16 Reasons For Judgment dated July 12, 2017, para.
12, 2017, para.10 6
~~ Reasons For Judgment dated July
para. 25
'g Reasons For Judgment dated July 12, 2017,
19 Reasons For Judgment dated July 12, 2017, paras. 128 and 345
pwc but, appropriately, only the time spent by the
20 Access was billed over $175,000 in fees by
d disbursement($66,040)
testifying expert, M.Dobner, is being claime as a recoverable
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es billed to
33. All amounts claimed by Access to partially reimburse it for the fees and expens
award of costs or
it by its two expert witnesses should be awarded as part of a lump sum
amoun t
D. How Access calculated the fee component of the claimed lump sum
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(between the filing of the Statement of Claim in April 2013 and the conclusion of trial
5. the relevant monthly employment costs for each lawyer were then multiplied by the
variable monthly percentages estimated by each lawyer to arrive at a sum per lawyer
per month;
6. the total sums for each of the four lawyers24 were calculated; and
7. the four total sums per lawyer were added to arrive at the total sum of $642,000
35. Moreover, as the evidence filed by Ms. Levy reveals, as Access conducted the litigation
using "in house" litigation lawyers, it did not have access to law clerks and support staffto
generate all the documents that were ultimately filed with the court, including the
voluminous binders of discovery "read-ins", other trial exhibits (there were over 100
exhibits at the end of the trial), and binders of compendia for use in oral argument.
36. Access paid approximately $47,000 to Bennett Jones LLP for the services of a law clerk
who prepared all bound volumes of documents that were filed with the court during the
tria1.25 Had Access retained external counsel to represent it, those law clerk costs would
rates
have been partially recoverable because they would have been reflected in the hourly
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Access
37. Had Access not employed salaried litigation counsel to represent it in the action,
to the pre-
would have had to retain external counsel. Given the amount of work dedicated
a r of
trial and trial proceedings summarized above, it is almost a certainty that retaine
have resulted
external counsel with the necessary experience to prosecute the action would
by Access to the
in legal fees to Access far exceeding the $642,000 in legal fees dedicated
action.
l counsel were
38. Access reasonablY exPects that the legal fees billed to York b Y its externa
eration the
more than the $642,000 sum that Access expended, before taking into consid
rty post-secondary
"significant" contributions to York's legal costs provided by non-pa
26
institutions and organizations.
reasonable.
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T-]784-06 2010 FC 1099 Philip Morris Products S.A. 20 5 18 days $2 million 33%
Lam' (merits) v
2011 FC 1113 Marlboro Canada Ltd
(costs) Tab 3C
(January 7, v
2016)
Concierge Connection
Tab 3E
v
Dynamo Industries
Tab 3G
(merits) v
York University
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41. Considering the circumstances of this case, the factors set out in Rule 400(3), the
jurisprudence referred to above, and the findings made by the trial judge in the Reasons for
Judgment, Access asks that the court award it 50% (i.e. $321,000) of the $642,000 sum,
calculated in the manner described above, as the fee component of the costs award to
Access.
42. As revealed in Ms. Levy's affidavit28, if Access' recovery was limited to the amounts
provided under Tariff B of the Federal Courts' costs tariff, that recovery would range from
less than 20% ($125,173 under Column III of Tariff B)to 34% ($219,421 under Column
43. Even if the trial judge declined to make a lump sum award but gave all the directions29 to
the Assessment Officer(as requested by Access, in the alternative, to its request for a lump
~ sum), and the Assessment Officer made no deductions to the draft Bill of Costs, 30Access'
recovery of the fee component of its costs award would be approximately 44%($286,707
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44. Access asks the court to fix the disbursement component of the lump sum costs award at
$228,703.18 (inclusive of$25,122.16 HST). The claimed amount is fully supported by the
Levy affidavit.3 ~
45. The trial judge preferred the expert evidence of Mr. Gauthier and Mr. Dobner to that of the
3z
defendant's expert witnesses.
46. The actual amount expended by Access to retain pwc's Michael Dobner was $177,162.50
(before disbursements and HST)33. Appropriately, Access is claiming only the fees (101.6
to the 1000+
47. A significant portion ofthe claimed printing/photocopying expenses34 related
Throughout the
documents that York produced to Access on and after April 5, 2016.
of e-mail only.
proceedings, York delivered its voluminous documents to Access by way
and photocopying
Access was required to incur significant "in house" expenses in printing
these documents.
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48. As discussed above, York's late production of 1000+ documents six weeks before trial
caused Access extraordinary prejudice. Ms. Zagar was required to halt all other trial
preparation activities and focus entirely on these documents, and prepare for and conduct
14 hours of oral examinations for discovery related to these late productions in the 10 days
before trial.
49. To mitigate that prejudice and to enable Access to prepare for those examinations, Access
retained Melissa Dimilta, an associate lawyer at Bennett Jones, LLP,on an urgent basis, to
50. As reflected in the Bennett Jones invoice,35 Ms. Dimilta minimized the cost to Access and
ensured the completion of the document review in the abbreviated time available by
L 51. In the circumstances, it was not unreasonable for Access to retain Ms. Dimilta. There is no
legitimate reason to deny Access recovery of 100% of the fees it paid to Bennett Jones
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F. Conclusion
of
' S2. For all the above reasons, Access requests that the trial judge make a lump sum award
a. 50% ofthe legal fees that Access incurred in the action = $321,000;
and
s that the
53. Ifthe trial judge is disinclined to make a lump sum award ofcosts, Access request
ements in
trial judge direct the Assessment Officer to assess Access' fees and disburs
Arthur B. enaud
Barrister &Solicitor
40 Rivercrest Road
~~ Toronto, ON M6S 4H3
(647)984-1049
a.b.renaudn~mail.com
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