Bank of Montreal v. Binder, (2005) 237 N.S.R.(2d) 69 (SmCl)

• Court: Small Claims Court of Nova Scotia (Canada)
• Case Date: September 30, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 237 N.S.R.(2d) 69 (SmCl)

Bk. of Mtrl. v. Binder (2005), 237 N.S.R.(2d) 69 (SmCl);

    754 A.P.R. 69

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. OC.011

Bank of Montreal (applicant) v. Fabian Lowell Binder (respondent)

(251028)

Indexed As: Bank of Montreal v. Binder

Nova Scotia Small Claims Court

Richardson, Adjudicator

September 30, 2005.

Summary:

A party filed a Notice of Taxation with respect to its disbursements.

An Adjudicator of the Nova Scotia Small Claims Court determined the matter accordingly.

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General - An Adjudicator of the Nova Scotia Small Claims Court stated that "While I accept that disbursements must be incurred to be taxable, I do not agree that they must actually have been paid prior to the taxation. It is enough in my view that the client has a liability to pay them" - See paragraph 9.

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies or printing - On a taxation, an Adjudicator of the Nova Scotia Small Claims Court reduced a lawyer's claim for photocopying, calculated at 25 cents per page, by 50% - There was no evidence to establish the actual paper and binding costs - There was evidence that commercial printers charged 5 cents per page and presumably made a profit - The Adjudicator acknowledged that there might be some justification for a rate per page that was somewhat higher than the commercial rate - The law firm might require quick copies or require some copies to be made in confidence and both might come at a higher "cost" than that associated only with the paper used - Further, a law firm might not be able to match the economies of scale of a commercial printer - See paragraphs 29 to 42.

Practice - Topic 7138

Costs - Party and party costs - Disbursements - Computer research - On a taxation, an Adjudicator of the Nova Scotia Small Claims Court disallowed, in its entirety, a lawyer's claim for electronic research in the amount of $573.96 - The Adjudicator stated that "In the absence of any evidence as to the actual cost of the electronic research in question; or any evidence as to how the applicant's law firm pays for its access to electronic databases; and in the absence of much if any case law that would be outside the normal collection of a law firm's library; I am of the view that the applicant has not established that the electronic research in this matter was a reasonable disbursement, as opposed to part of its general overhead" - See paragraphs 48 to 57.

Practice - Topic 7150.3

Costs - Party and party costs - Disbursements - Faxes - On a taxation, an Adjudicator of the Nova Scotia Small Claims Court reduced a lawyer's claim for faxes from $578.67 to $70 - The Adjudicator stated that "given that there is a phone surcharge being claimed; given the advances in fax technology and speed since 1993; given that some of the faxes were to the client; given the lack of evidence of the actual cost of faxes; but given that some allowance would appear to be reasonable given the number of parties involved and the compressed time frames involved in appeals, I conclude that a charge of $70.00 in respect of faxes is reasonable." - See paragraphs 43 to 47.

Cases Noticed:

Binder v. Royal Bank of Canada et al. (2005), 234 N.S.R.(2d) 109; 745 A.P.R. 109; 2005 NSCA 94, refd to. [para. 8].

Ormrod v. Goodall (2002), 209 N.S.R.(2d) 330; 656 A.P.R. 330 (S.C.), refd to. [para. 24].

Bank of Montreal v. Scotia Capital Inc./Scotia Capitaux Inc. et al. (2002), 211 N.S.R.(2d) 107; 662 A.P.R. 107; 2002 NSSC 274, refd to. [para. 24].

3664902 Canada Inc. v. Hudson's Bay Co. (2002), 22 C.P.C.(5th) 102 (Ont. Sup. Ct.), refd to. [para. 24].

Kimberly-Clark Inc. v. Julimar Lumber Co., [2004] N.S.R.(2d) Uned. 37; 2004 NSSC 71, refd to. [para. 24].

Day v. Day (1994), 129 N.S.R.(2d) 186; 362 A.P.R. 186 (S.C.), refd to. [para. 24].

Wyatt v. Franklin (1993), 123 N.S.R.(2d) 347; 340 A.P.R. 347 (S.C.), refd to. [para. 24].

Maxwell et al. v. Durland, Gillis and Parker (1991), 108 N.S.R.(2d) 405; 294 A.P.R. 405 (Co. Ct.), refd to. [para. 27].

Halifax Regional Municipality Pension Committee v. Superintendent of Pensions (N.S.) et al. (2005), 248 N.S.R.(2d) 38; 789 A.P.R. 38; 2005 NSSC 228, refd to. [para. 32].

Boyne Clarke v. Steel, [2002] N.S.J. No. 186 (Small Claims Ct.), refd to. [para. 32].

Elliott v. Nicholson (1999), 179 N.S.R.(2d) 264; 553 A.P.R. 264 (S.C.), refd to. [para. 32].

Rhyno Demolition Inc. v. Nova Scotia (Attorney General) et al. (2005), 233 N.S.R.(2d) 311; 739 A.P.R. 311; 2005 NSSC 147, refd to. [para. 34].

Balders Estate v. Registrar of Probate for Halifax (County) (1999), 181 N.S.R.(2d) 201; 560 A.P.R. 201 (S.C.), refd to. [para. 35].

Hudgins v. Danka Business Systems Ltd., [1998] N.S.R.(2d) Uned. 83 (S.C.), refd to. [para. 35].

Inrich Business Development Centre Ltd. v. LeBlanc (1997), 161 N.S.R.(2d) 140; 477 A.P.R. 140 (S.C.), refd to. [para. 35].

Newman et al. v. LaMarche and Black (1994), 131 N.S.R.(2d) 165; 371 A.P.R. 165 (S.C.), refd to. [para. 35].

Osborne v. Osborne (1994), 130 N.S.R.(2d) 283; 367 A.P.R. 283 (S.C.), refd to. [para. 35].

Knox v. Interprovincial Engineering Ltd. et al. (1993), 120 N.S.R.(2d) 288; 332 A.P.R. 288 (S.C.), refd to. [para. 36].

Keddy v. Western Regional Health Board, [1999] N.S.J. No. 464 (S.C.), refd to. [para. 50].

Coleman Fraser Whittorne & Parcells v. Canada (Dept. of Justice), [2003] N.S.J. No. 272 (C.A.), refd to. [para. 56].

Parsons v. Canada Safeway Ltd. (1995), 57 A.C.W.S.(3d) 716 (B.C.S.C.), refd to. [para. 56].

Counsel:

Douglas Tupper, Q.C., and Peter Sullivan, for the applicant;

David Walker, agent, for the respondent Fabian Lowell Binder.

This taxation was heard by Richardson, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on September 30, 2005.