Access Copyright’s Costs Motion Material Makes for Interesting Reading

Access Copyright as the prevailing party in the recently decided trial judgment in the Federal Court is seeking to recover its legal costs from York University, as is normal. It is asking for a lump sum of $549,703 which consists of $321,000 for fees and $228,703 for disbursements and HST. Its material filed on August 10, 2017 is as follows:

• notice of motion
• written representations
• affidavit of Roanie Levy

York University will have a chance to file written submissions in response. It may be noted that cost recovery in the Federal Court is normally only a portion of the party’s actual costs. It also may be noted that cost recovery normally proceeds even while an appeal is pending, unless there is a stay order in place and this is rare. Apparently, York has made no attempt to stay the costs order process or any other aspect of Justice Phelan’s judgment.

York’s costs will not become public unless and until it succeeds on appeal and gets an order for costs below and files material in support of its costs claim. What we do know so far is that in December 2015, it was estimated that this litigation would cost York and contributing institutions “hundreds of thousands of dollars, if not a million”, according to York GC Maureen Armstrong in an interview reported on December 29, 2015.  I have no information as to whether that estimate is still valid.

Access Copyright is seeking a lump-sum award approximating 50% of the expenses incurred by it to employ its salaried litigation counsel in this litigation and 100% of its out-of-pocket disbursements. The judgment lists three counsel for Access Copyright. By comparison, York University has five counsel listed in the judgment from a large outside law firm.

For those interested in how this case unfolded, there are some interesting details in Roanie Levy’s affidavit.

HPK