Date: 20060822
Docket: T-974-01
Citation: 2006 FC 1012
BETWEEN:
ERIC SCHEUNEMAN
Plaintiff
and
HER MAJESTY THE QUEEN
(HUMAN RESOURCES DEVELOPMENT CANADA)
Defendant
ASSESSMENT OF COSTS – REASONS
Charles E. Stinson
Assessment
Officer
[1]
The
Plaintiff, representing himself, brought an action for damages further to
asserted errors relative to the administration of his disability benefits under
the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP). The Federal Court
dismissed his action, refused the Defendant’s request for solicitor-client
costs and awarded party and party costs to the Defendant. The Federal Court of
Appeal dismissed his appeal without costs. I issued a timetable for written
disposition of the Defendant’s bill of costs in the Federal Court proceeding.
I. The Defendant’s Position
[2]
The
Defendant argued that the claimed total of $8,985.00 for costs is reasonable
and fair given the Court’s finding that there was no legal basis for this
action. The Defendant’s conduct does not warrant any reduction, further to Rules
409 and 400(3) factors, of the maximum amounts claimed for counsel fees. As
well, the Court issued special directions for the conduct of the action to
accommodate the Plaintiff’s disability, i.e. written interrogatories, evidence
at trial in affidavit form, cross-examination questions for trial to be
provided in advance and other provisions all warranting the maximum costs
claimed. The Plaintiff’s unfocused approach in the conduct of his case, i.e.
amended pleading and a lengthy reply, complicated the conduct of the
Defendant’s case. None of this can be construed as penalizing the Plaintiff for
his disability because each step taken was essential to establishing the
Defendant’s position. The Plaintiff’s asserted lack of resources is irrelevant
given that the award of costs already exists, the authorities have discounted
capacity to pay as a factor, the record confirms several sources of income for
the Plaintiff, costs are a consequence and obligation further to lack of
success at trial, and the costs available further to the Tariff are low
compared to the actual costs of litigation. The Defendant requested, further to
Rule 408(3), a mid-range allowance of 3 units for item 26 given the work
required to take this matter to an assessment of costs.
II. The Plaintiff’s Position
[3]
The
Plaintiff argued that awards of costs, and the Crown’s insistence on their
payment, discriminate against the disabled and those with scant resources. The
asserted justification of reducing burden on the courts simply reinforces the
notion that access to the courts is restricted to the wealthy. The Plaintiff
argued further to Rules 409 and 400(3)(c), (h) and (o) for a reduction of
assessed costs because of the importance of this case for access and rights of
the disabled to CPP benefits. The Plaintiff did follow the case management
judge’s suggestion to drop certain Charter arguments. It was the
Defendant who requested that he amend his pleading after the former reinstated,
without notice, his disability benefits. If the Plaintiff’s conduct was
unfocused as alleged, it was because he could not afford a lawyer and had to
represent himself: he should not be penalized with extra costs. The Plaintiff’s
disability as a factor affecting the length of the trial cannot justify
increased costs for the Defendant because that result would conflict with well
established principles of accommodation for the disabled. The judgment for
costs did not restrict my discretion for setting the amount of costs actually
payable, which should be a symbolic amount of $10.00 or $100.00.
III. Assessment
[4]
The
Federal Courts Act, sections 4 and 5.1(1) defining the Federal Court,
and Rule 2 of the Federal Courts Rules defining an assessment officer,
mean that the terms “Court” (as used in Rule 400) and “assessment officer”
refer to separate and distinct entities. My jurisdiction to address the
Plaintiff’s request to me either for a nominal award of costs or for denial of
costs on humanitarian and constitutional grounds to avoid bringing the
administration of justice into disrepute is therefore precluded because both
said types of relief fall to the Court under Rule 400(1). The Court is functus
relative to both types of relief having instead or already awarded party and
party costs. That Rule 400(1) exercise of discretion triggered and restricted
my jurisdiction to the parameters of Rule 407, i.e. Column III costs under
Table B, which are not in the nature of nominal or no costs. Accordingly, I
have not summarized the Plaintiff’s position concerning Rule 400(1) and (6)(a)
and (d) (the Court’s discretion to award or refuse costs in respect of a
particular issue or step and to award costs against a successful party
respectively) as I am not the “Court” as that term is used in said Rule.
[5]
The
Court in Scheunenman v. Canada (Human Resources
Development), [2003] F.C.J. No. 46 (F.C.T.D.) at para. [4], held that a
“Plaintiff’s lack of legal training does not give him any additional rights and
if he insists on representing himself, he must play by the same rules as
everyone else.” The Court, in Kalevar v. Liberal Party of Canada, [2001]
F.C.J. No. 1721 (F.C.T.D.), at paras. [22] – [24] inclusive, held similarly. I
am not suggesting that the Plaintiff’s conduct equated to unbroken deviation
from the Rules, but I do take from this jurisprudence the notion that the mere
fact of being a self-represented litigant does not shield one from the
consequences of conduct that might apply to a litigant represented by a
solicitor of record.
[6]
In
Bow Valley Naturalists
Society et al. v. Minister of Canadian Heritage et al., [2002]
F.C.J. No. 1795 (A.O.), I considered the relevance of public interest for
assessments of costs and concluded that the application of Rules 409 and 400(3)
factors against the interest of successful litigants would require carefully
considered discretion. That a judgment for costs does not accord the
unsuccessful litigant special consideration relative to costs as a function of
public interest does not preclude me from applying Rules 409 and 400(3)(h)
(public interest). I do not think that, in the absence of proactive
interventions by special interest groups, it can be presumed that statutory and
regulatory schemes do not work in the public interest. The trial judge at para.
[18], in disposing of the Plaintiff’s Charter matters, found that his
“interests were primarily economic.” The appeal court, in considering and
upholding the trial judge, noted the clear evidence in the record that the
Plaintiff’s disability benefits were terminated because of an administrative
error and then reinstated as a remedy under s. 66(4) of the CPP thereby
precluding the jurisdiction in both Courts to compel the Defendant to
reconsider said remedy. In these circumstances, I decline to apply a public
interest factor to minimize the costs payable by the Plaintiff.
[7]
I
concluded at para. [7] in Starlight v. Canada, [2001]
F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the tariff
need not be used, as each item for the services of counsel is discrete and must
be considered in its own circumstances. As well, broad distinctions may be
required between an upper versus lower allowance from available ranges. Quite
simply, much of the Plaintiff’s materials were irrelevant. His reliance on Rule
400(6), for relief clearly beyond my jurisdiction, indicates a lack of
understanding of the process of assessment of costs, i.e. to translate an award
of costs into a dollar amount. Effectively, the absence of any relevant
representations by the Plaintiff, which could assist me in identifying issues
and making a decision, leaves individual amounts by item in the bill of costs
unopposed. My view, often expressed in comparable circumstances, is that the Federal
Courts Rules 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, i.e. 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. Certain items warrant my
intervention as a function of my expressed parameters above and given what I
perceive as general opposition to the bill of costs. I think that the
Plaintiff’s mode of conduct, apart from his disability, was not so focused as
to preclude unnecessary work for the Defendant. I will not interfere in the
Defendant’s lawful and arguable claim to maximum amounts under the Tariff for
counsel fees, other than to remove the item 14(b) claim for second counsel
given that the Court did not visibly authorize, as its wording requires, for
said cost.
[8]
My view, often
expressed further to my approach in Carlile v. Her Majesty the Queen
(1997), 97 D.T.C. 5284 (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 out a reasonable
result for costs equitable for both sides. I think that my view is reinforced
by the editorial comments (see: The Honourable James J. Carthy, W.A. Derry
Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005-2006 (Aurora,
Ont: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an
assessment of costs is more of an art form than an application of rules and
principles as a function of the general weight and feel of the file and issues,
and of the judgment and experience of the assessment officer faced with the
difficult task of balancing the effect of what could be several subjective and
objective factors. In Almecon Industries Ltd. v. Anchortek Ltd., [2003]
F.C.J. No. 1649 (A.O.) at para. [31], I found certain comments in the evidence,
although self-serving, nonetheless to be pragmatic and sensible concerning the
reality of a myriad of essential disbursements for which the costs of proof
might or would exceed their amount. However, that is not to suggest that
litigants can get by without any evidence by simply relying on the discretion
and experience of the assessment officer. The proof here is less than absolute.
The paucity of evidence of the circumstances underlying each expenditure makes
it difficult for the respondent on the assessment of costs and the assessment
officer to satisfy themselves that each expenditure was incurred as a function
of reasonable necessity. The less that evidence is available, the more that the
assessing party is bound up in the assessment officer’s discretion, the
exercise of which should be conservative, with a view to a sense of austerity
which should pervade costs, to preclude prejudice to the payer of costs.
However, real expenditures are needed to advance litigation: a result of zero
dollars at assessment would be absurd.
[9]
The
claimed disbursements include $15.00 for service of a notice of abandonment of
motion. There likely are other charges within the claimed disbursement total of
$1,911.00 associated with interlocutory orders silent on or not providing for
costs. Further to Balisky v. Canada (Minister of
Natural Resources), [2004] F.C.J. No. 536 (A.O.) at para. [6] and Aird
v. Country
Park Village Properties
(Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at para. [10], I have no
authority to assess costs in the face of an order silent on costs. I am not
satisfied that the claimed disbursement total excludes costs associated with
certain interlocutory events. The claimed charges for online computer research
include work occurring after the trial. In a departure from ordinary practice,
the Plaintiff was provided with an electronic and a hard copy of the trial
transcript to aid in his preparation of certain post-hearing submissions.
Although the parameters of said work were not provided, I find it prudent that
the Defendant’s counsel prepared himself should a post-hearing reply become
necessary. I allow a reduced total of $1,625.00 for disbursements. This
assessment was not a stretch for the Defendant: I allow the minimum 2 units
under item 26. The Defendant’s bill of costs, presented at $8,985.00, is
assessed and allowed at $8,381.00.
“Charles
E. Stinson”
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