Date: 20060906
Docket: T-330-05
Citation: 2006 FC 1068
BETWEEN:
PHILLIP
MACDONALD
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
[1]
This
is an assessment of costs pursuant to an Order and Reasons for Order of the Federal
Court dated September 29, 2005. The judicial review arose from a decision of
the Commissioner of the Correctional Service of Canada (CSC) dated January 26,
2005 in which the Applicant’s grievance of his placement in administrative
segregation at Fenbrook Medium Institution (FMI) in Gravenhurst, Ontario was
denied. The Federal Court, after a thorough review of all the material before
it, determined that the decision to uphold the Deputy Commissioner’s denial of
the Applicant’s grievance was not patently unreasonable and dismissed the application
for judicial review with costs.
[2]
The
Respondent forwarded its original Bill of Costs on June 9, 2006 to the Toronto
Registry and requested an assessment of the costs associated with this
proceeding.
[3]
On
June 20, 2006, I issued directions setting a timetable for written submissions
and the filing of all materials. The Respondent complied with the timeframes
and filed the Supplementary Affidavit of Melanie Toolsie, sworn on June 30,
2006, in support of its claims with an amended Bill of Costs attached as an
exhibit to this affidavit.
[4]
I
note that the Applicant’s solicitor filed a letter of submissions on July 4,
2006 opposing the Respondent’s Bill of Costs notwithstanding that the “…Legal
Aid retainer on bringing the above-captioned action is at an end.” The
Applicant submits that “no time dockets” have been submitted to justify the
upper level of Column III of Tariff B that has been requested by the Respondent
for a number of the itemized assessable services. In addition, regarding item
25 (Services after judgment not otherwise specified), the Applicant submits
“There is nothing specified why this entry is made.” The Applicant has attached
pages from an Ontario Legal Aid Tariff Manual which outlines times that may be
claimed for services rendered by solicitors in that specific forum. Finally,
the Applicant takes exception to the inclusion of GST in the Respondent’s Bill
of Costs and submits that “The Department of Justice does not make its income
by selling legal services. The DOJ is a GST exempt entity.”
[5]
The
Respondent has claimed 1 unit for Item 25 (Services after judgment not
otherwise specified). As mentioned above in paragraph [6], the Applicant is
concerned with the lack of explanation for this request. I rely to the decision
in Grace M. Carlile v. Her Majesty the Queen, [1997] F.C.J. No. 885 (TO)
at paragraph 26:
…
Taxing Officers are often faced with less than exhaustive proof and must
be careful, while ensuring that unsuccessful litigants are not burdened with
unnecessary or unreasonable costs, to not penalize successful litigants by
denial of indemnification when it is apparent that real costs were indeed
incurred.
It
is my opinion that common sense dictates that the Respondent’s solicitor must
have had some interaction with its client after the Order and Reasons for
Order of the Federal Court were issued in this matter. For these reasons, I
allow the 1 unit ($120.00) for this assessable service.
[6]
The
Respondent’s remaining assessable items includes:
Tariff No. Assessable
Service Units Sought Unit Value
Item 2 Respondent’s
Record 7 $840.00
Item 8 Preparation for
cross- 5 $600.00
Examination of
Phillip MacDonald
Item 8 Preparation of
Answers 5 $600.00
to written
questions of
Lisa Blasko
Item 9 Attending on cross- 6 $720.00
Examination of
Phillip MacDonald
Item 13(a) Prep. for hearing 5 $600.00
Item 14(a) Fee for 1st
counsel per 15 $1,800.00
hour in court
Item 26 Assessment
of Costs 2 $240.00
Item 27 Notice of Appearance, 1 $120.00
February 22, 2005
The itemized assessable services above were
essential to the conduct of this judicial review. Therefore, it is my opinion
that the Respondent’s claim for 46 units ($5,520.00) for the remaining assessable
services are reasonable and are allowed in their entirety.
[7]
I
share the concerns of the Applicant regarding the GST amount of $394.80 claimed
by the Respondent associated with these assessable services. However, Rule
1(3)(b) of Tariff B of the Federal Courts Rules states:
1(3) Disbursements – A bill of costs
shall include disbursements, including
(a)
payments
to witnesses under Tariff A; and
(b)
any
service, sales, use or consumption taxes paid or payable on counsel fees or
disbursements allowed under this Tariff.
With this rule in mind, it seems obvious to
me that the Respondent is allowed to be reimbursed by the unsuccessful party
for the GST or “consumption taxes paid” that are associated with its
disbursements. However, the Respondent has extended this claim for GST to the
assessable services claimed in its Bill of Costs. I note that the Respondent
has not provided any proof that it has invoiced its client for GST. To my
knowledge the time dockets under the ‘iCase system’ prepared by the Department
of Justice solicitors that reflect the actual time spent on each respective
litigation do not contain any reference or claim for GST. It appears the
inclusion of GST on the assessable services may be just an inadvertent error on
the part of the Respondent. In my opinion, with regard to these specific
circumstances and for the reasons I have mentioned above, the Respondent is not
entitled to claim GST on its assessable services in its respective Bill of
Costs. Therefore, I disallow the $394.80 for GST associated with the assessable
services.
[8]
I noted a small error in the
Respondent’s Bill of Costs regarding the IKON invoice which was an exhibit to
the Affidavit of Melanie Toolsie, sworn June 6, 2006 and I have corrected the
disbursements total to $879.42 which includes GST. The Respondent’s disbursements for fees associated
with process servers, out-of-office photocopying charges, court reporters fees
and transcripts for cross-examinations are allowed in their entirety since they
appear reasonable and in my opinion were necessary for the conduct of this
proceeding.
[9]
The
Respondent’s Bill of Costs in T-330-05 is assessed and allowed in the amount of
$6,519.42 which includes assessable services of $5,640.00 and disbursements of
$879.42 which includes GST. A certificate is issued in this Federal Court
proceeding for $6,519.42 payable by the Applicant to the Respondent.
“Paul Robinson”
Paul G.C. Robinson
Assessment
Officer
Toronto,
Ontario
September
6, 2006
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