[1] This matter is a reference pursuant to section 18 of the Citizenship Act to determine whether the Defendant's Canadian citizenship was obtained based on false representation or fraud. Initially, the Defendant was represented by legal counsel, but subsequently advised the Court that he intended to act in person. This matter was set for hearing on February 18, 2003. On that morning, the Defendant advised the Court that he had retained counsel who was not available that day (this latter counsel subsequently advised the Court that he did not represent the Defendant and had never agreed to do so.) The Court reluctantly adjourned the hearing and held that the Defendant's behaviour should be sanctioned by solicitor-client costs of the day, thrown away, payable forthwith in any event of the cause upon being fixed by the Court.
[2] The Plaintiff's bill of costs was placed before me. I directed the Registry to advise the Court that it appeared from the Reasons for Order and Order dated February 18, 2003, that a judge was to address this bill of costs, but that I was prepared to assess the bill of costs if the Court so wished. The Court subsequently directed that I assess the bill of costs and I issued a timetable for written disposition.
[3] The Plaintiff applied the party and party limits of Tariff B and claimed $100.00 per hour for 45 hours and one hour respectively for preparation for trial and attendance on February 18, 2003. The Plaintiff asserted that actual preparation time was 47.25 hours, but only 45 hours were claimed to keep the total for the bill of costs below $5,000.00 in anticipation of the Defendant asserting financial difficulty in paying costs as a self-represented litigant. The Plaintiff claimed $300.00 for the interpreter who had been booked for, and who charged for, a full day on February 18, 2003: the matter was adjourned after one hour. The Plaintiff argued that the Defendant has not led evidence of his financial situation or his ability to pay costs. The Plaintiff argued that the Defendant must bear the consequences of the Court's sanction against him and that the jurisprudence, including Nike Canada Ltd. v. Jane Doe, [1999] F.C.J. No. 1018 (QL) (F.C.T.D.), holds that neither ability to pay nor difficulty of collection are factors.
[4] The Defendant argued that he was unrepresented on February 18, 2003, and did not appreciate the consequences of costs. He argued that the trial preparation costs should be significantly reduced because he is a low income earner and does not have the resources to pay. He asserted that he is prepared to pay $500.00 by June 30, 2003, to settle the bill of costs.
ASSESSMENT
[5] The ability to pay costs and potential difficulties for collection of costs are not factors in an assessment of costs. A solicitor-client award of costs removes the restriction of partial indemnity posed by Tariff B. My view of the practical approach to costs endorses the sentiment (addressing counsel fees) of Lord Justice Russell in Re Eastwood (deceased) (1974) 3 All E.R. 603 at page 608 that an assessment of costs is "in any event rough justice, in the sense of being compounded of much sensible approximation". Regardless of what I think represented a sufficient number of hours for preparation, I conclude that the Plaintiff's approach resulted in a claim for an hourly rate below what might ordinarily be asserted in turn resulting in a total amount which is modest for the services performed. I am satisfied that the particular items of costs claimed meet the threshold for costs thrown away, ie. expenses incurred by a litigant as a function of the sanctioned conduct of an opposing litigant. I allow the solicitor-client costs of $4,900.00 as claimed by the Plaintiff.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
June 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-23-01
STYLE OF CAUSE: MCI v. WEN BIN WU
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: Charles E. Stinson
DATED: June 25, 2003
SOLICITORS OF RECORD:
Morris Rosenberg For Plaintiff
Deputy Attorney General of Canada
Email this Content