Date: 20101126
Docket: A-391-08
Citation: 2010 FCA 321
Present: JOHANNE PARENT, Assessment Officer
BETWEEN:
PATRICK
GROULX
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Dealt with in writing without the appearance
of the parties.
Certificate of Costs delivered
at Toronto,
Ontario,
on November 26, 2010.
REASONS
FOR ASSESSMENT BY: JOHANNE PARENT,
Assessment Officer
Date: 20101126
Docket: A-391-08
Citation: 2010 FCA 321
Present: JOHANNE
PARENT, Assessment Officer
BETWEEN:
PATRICK GROULX
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ASSESSMENT
JOHANNE PARENT, Assessment
Officer
[1]
On
February 9, 2009, the Court dismissed the appeal from an Order of Madam Justice
Valerie Miller of the Tax Court of Canada, with costs. A timetable for the
written disposition of the Bill of Costs was issued on September 16, 2010. Both
parties filed representations in the prescribed timeframe.
[2]
The
respondent states that the Bill of Costs was prepared in accordance with Column
III of Tariff B of the Federal Courts Rules and that all disbursements
claimed are supported by the affidavit of Josie Borg sworn September 10, 2010.
[3]
In
response, the appellant argues that an assessment of costs would be an unfair
hardship as he lives on a fixed income below the poverty level. The appellant
also indicates having been informed by a lawyer at the Department of Justice
that “billing and collecting costs is discretionary”. He further argues that
the costs “seem like harassment and malicious prosecution”.
[4]
In
rebuttal to the first argument raised by the appellant, counsel for the
respondent cites paragraph 8 of the decision in Latham v. Canada 2007
FCA 179 (A.O.):
8. The existence of outstanding
appeals does not prevent the Respondents from proceeding with these assessments
of costs: see Culhane v. ATP Aero Training Products Inc.,
[2004] F.C.J. No. 1810
(A.O.) at para. [6]. In Clarke v. Canada (Attorney General),
[2005] F.C.J. No. 814
(A.O.), the Applicant (an inmate), in arguing before me that his limited
resources coupled with the potential amount of assessed costs would interfere
with his rehabilitation, correctly conceded in my view that both capacity to
pay and likelihood of satisfaction of the assessed costs are irrelevant in the
determination of issues of an assessment of costs. That is, I cannot
interfere with the exercise of the Court's Rule 400(1) discretion which
established the Respondents' right for recovery here of assessed costs from the
Applicant/Appellant. I do not think that financial hardship falls within the
ambit of "any other matter" in Rule 400(3) (o) as a factor relevant
and applicable by an assessment officer, further to Rule 409, to minimize
assessed litigation costs. Self-represented litigants and litigants represented
by counsel receive the same treatment relative to the provisions for litigation
costs: see Scheuneman v. Canada (Human
Resources Development),
[2006] F.C.J. No. 1278 (A.O.). The Courts here made their findings concerning
entitlements to costs: I have no jurisdiction to interfere.
(Underlining
added)
[5]
The
respondent adds that as no evidence can be found regarding harassment and
malicious prosecution, they therefore should not be considered in this
assessment of costs. As for the discretion for costs, counsel for the
respondent refers to Rule 400(1) of the Federal Courts Rules and the
full discretionary authority of the Court to award costs.
ASSESSMENT
[6]
As stated
in Latham (previously cited) and later by the undersigned in Gebele v.
Canada 2009 FCA 160: “the appellant's inability to pay costs cannot be a
consideration in the assessment of costs”.
[7]
Concerning
the appellant’s argument regarding discretion on awarding costs, Rule 400(1) of
the Federal Courts Rules states “The Court shall have full discretionary
power over the amount and allocation of costs and the determination of by whom
they are to be paid”. The decision of February 9, 2009 in this matter is
unambiguous seeing that the Court clearly exercised its discretion in dismissing
the appeal, with costs.
[8]
The parties
did not specifically argue the services and disbursements claimed in the
respondent’s Bill of Costs. In considering the assessable services claimed
under Tariff B of the Federal Courts Rules, I note that the respondent
claimed the minimum number of units for each service. In light of the Court
file, I consider that the services claimed for the Memorandum of Fact and Law,
Counsel fee on hearing and services after judgment are all justified and
reasonable. They will therefore be allowed as claimed. I have further reviewed
all the disbursements claimed along with the affidavit of Josie Borg. All
disbursements are substantiated, were all charges necessary to the conduct of
this matter and will, therefore, be allowed.
[9]
Regarding
the claim that the costs amounted to “harassment and malicious prosecution”, I
have carefully read the appellant’s affidavit sworn October 27, 2010 along with
the factors mentioned in Rule 400(3) of the Federal Courts Rules. I find
that none of the factors mentioned in Rule 400(3) apply to the case at bar and
that the numerous statements contained in this affidavit are irrelevant for this
assessment of costs.
[10]
The
respondent’s Bill of Costs is allowed for a total amount of $1,739.10
“Johanne Parent”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-391-08
STYLE OF CAUSE: PATRICK GROULX v. HER MAJESTY
THE QUEEN
ASSESSMENT
OF COSTS DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF
COSTS BY: JOHANNE PARENT, Assessment Officer
DATED: November 26, 2010
WRITTEN
REPRESENTATIONS BY:
|
Patrick Groulx (Self-Represented)
|
FOR
THE APPELLANT
|
|
Amit Ummat
Donna
Dorosh
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Patrick Groulx (Self-Represented)
Etobicoke,
Ontario
|
FOR
THE APPELLANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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