[1] The Court concluded that the Notice of Application for judicial review of a decision of the Supreme Court of Canada (concerning reconsideration of leave to appeal) was beyond its jurisdiction and constituted an abuse of process. The Court struck it with costs. The Applicant's submissions in reply to the Respondent's bill of costs essentially asked that I exercise jurisdiction further to Rules 400(1) and (3) to deny costs. Given the Federal Courts Act, ss. 4 and 5.1(1) defining the court, and Rule 2 of the Federal Court Rules, 1998 defining an assessment officer, I do not have that jurisdiction. Rule 409 does not assist as it only brings Rule 400(3) factors into play once the court's Rule 400(1) jurisdiction has been visibly exercised. I do not have authority under Rule 405 to essentially vacate the award of costs with an assessment of nil dollars.
[2] Effectively, the absence of any relevant representations by the Applicant which could assist me in identifying issues and making a decision leaves the Respondent's bill unopposed. My view, often expressed in comparable circumstances, is that the Federal Court Rules, 1998 do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. In the circumstances of this litigation, the claims in the bill of costs are generally arguable within the limits of the award of costs.
[3] However, certain things warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs. Specifically, likely through inadvertence, the Respondent has applied a unit value of $112.85 for counsel fees, being the result of the calculation performed on March 15, 2002, by the Chief Justice of the Federal Court of Appeal per Tariff B4(1). However, Tariff B4(2) required that said result of $112.85 be rounded down to $110.00: I have adjusted the claims in the bill of costs accordingly.
[4] My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", is that discretion may be applied to sort a reasonable result for costs equitable for both sides. The claim under item 4 (should be item 5) for response to a contested motion will be reduced from the maximum 7 units claimed to the minimum 3 units in the available range. The disbursements are reasonable and allowed as presented. The Respondent's bill of costs, presented at $1,188.75, is assessed and allowed at $725.95.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
December 21, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-357-02
STYLE OF CAUSE: ERIC SCHEUNEMAN
- and -
ATTORNEY GENERAL OF CANADA
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: December 21, 2004
SOLICITORS OF RECORD:
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
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