Date: 20060608
Docket: T-548-04
Citation: 2006 FC 723
BETWEEN:
JOHN SUMMERBELL
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT OF COSTS - REASONS
PAUL G.C.ROBINSON
ASSESSMENT OFFICER
[1] On March 28, 2006, the Defendant filed the Bill of Costs and requested an assessment by way of written submissions for this proceeding. I issued directions on March 30, 2006 setting a timetable for the filing of all materials in support and in opposition to the Defendant's Bill of Costs.
[2] Neither the Plaintiff nor the Defendant filed any further material with regard to this assessment of costs. I have assumed that the Defendant is relying on the covering letter of submissions and the Affidavit of Jenie Sing, sworn on March 27, 2006, to support the Bill of Costs. At the same time, since the Plaintiff did not respond within the timeframes that I set out, I have also assumed that the Plaintiff has chosen not to participate in this assessment of costs.
[3] In this, as in all assessment of costs proceedings, I must take a position of neutrality. An Assessment Officer may neither advocate for any one party, nor allow assessable services and disbursements which fall outside of the Federal Courts Rules and the associated tariffs. In addition, I must adhere to the intent of any decision of the Federal Court or Federal Court of Appeal which awards costs or gives directions to an assessment officer regarding specific issues which may be considered.
[4] The Plaintiff's Statement of Claim was filed on March 12, 2004 and the particulars of the pleading alleged and claimed damages under the various sections, respectively, of the Corrections and Conditional Release Act in the amount of $30,022.99 plus interest. The Defendant did take specific procedural steps within the Federal Courts Rules to advance this matter, notwithstanding that the Plaintiff did not comply with a number of rule and procedural requirements. On May 2, 2005, the Federal Court issued a Notice of Status Review requiring the Plaintiff to "show cause" by written submissions why this action should not be dismissed for delay. By correspondence dated May 7, 2005, the Plaintiff advised the Federal Court of his inability to proceed with this action. On June 23, 2005, the Order of the Federal Court in regard to the Notice of Status Review stated:
IT IS ORDERED THAT this action be and it is hereby dismissed for delay.
[5] The Defendant's letter of submissions dated March 27, 2006 submits that the Bill of Costs "...has been prepared in accordance with the Federal Court[sic] Rules, specifically Rules 400, 402, 407 and 409."
[6] I am in partial agreement with the Defendant that several of the Federal Courts Rules that have been mentioned above in paragraph [5] pertain to this assessment of costs. Rule 400 (1) states:
400 (1) - 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.
[7] The Order of the Court dated June 23, 2005 dismissed the action and did not award costs. It is a well established principle that costs are at the respective Court's discretion and where an order is silent with respect to costs, it implies there is no visible exercise of the respective Court's discretion under Rule 400 (1). Reference may also be made to a relevant passage in Mark M. Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, paragraph 105.7:
... Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at a trial with no mention of costs, it is as though the judge had said that he "saw fit to make no order as to costs" ...
Similarly, I rely on Kibale v. Canada(Secretary of State), [1991] 2 F.C. D-9 which reflects the same sentiment:
If an order is silent as to costs, no costs are awarded.
With these points in mind, it is my opinion that the Defendant is not entitled to the costs associated with this proceeding.
[8] In support of my opinion that the Defendant is not entitled to costs for this action, I turn to Rule 402 which states:
402 - Unless otherwise ordered by the Court or agreed by the parties, a party against whom an action, application or appeal has been discontinued or against whom a motion has been abandoned is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party.
In the circumstances of this proceeding, the Plaintiff advised the Federal Court of his inability to proceed with this action. Those Plaintiff submissions were forwarded as a part of the Notice of Status Review process that was initiated by the Federal Court. The Plaintiff did not discontinue the action unilaterally. One could argue that the Plaintiff abandoned the proceeding but the fact remains that the Federal Court in its Order dated June 23, 2005 actually dismissed the action. In my opinion, the key phrase in Rule 402 that I should consider is "Unless otherwise ordered by the Court..." The action was dismissed by the Federal Court with no mention of costs contained in the decision which supports my opinion and reasoning from paragraph [7] above that no costs should be awarded in this action.
[9] Considering all the reasons that I have outlined in this assessment of costs, it is my opinion that the Defendant is not entitled to any costs for this action.
[10] The Bill of Costs in T-548-04 is assessed and allowed in the amount of nil dollars for assessable services and disbursements. A certificate is issued in this Federal Court proceeding for nil dollars.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
June 8, 2006
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