Cleroux v. Canada (Attorney General), 2003 FC 1309

Date: 20031106

Docket: T-1759-00

Citation: 2003 FC 1309

BETWEEN:

                                                             NORMAND CLÉROUX

                                                                                                                                                          Plaintiff

                                                                              - and -

                                                         THE ATTORNEY GENERAL

                                                                        OF CANADA

                                                                                                                                                      Defendant

                                               ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                 The Plaintiff sought damages as a function of his termination of employment with the federal public service. On April 20, 2001, the Court concluded that it had no jurisdiction, that his Statement of Claim was an abuse of process of the Court, and accordingly struck his action with costs. I directed that assessment of the Defendant's bill of costs proceed by way of written submissions.

The Plaintiff's Position

[2]                 The Plaintiff's written submissions were essentially his summary of his attempts for relief relative to his disputes with his employer. As well, the Plaintiff portrayed himself as a victim and asserted that he would be unable to satisfy assessed costs.

The Defendant's Position

[3]                 The Defendant argued further to Chaperon v. Canada [1992] F.C.J. 167 (F.C.T.D.) (T.O.) that an asserted inability to pay assessed costs is irrelevant and that the Plaintiff's reply submissions generally were irrelevant. The Respondent argued further to Rules 409 and 400(3)(k) and (o) that higher costs are justified for several reasons as a function of unnecessary and vexatious conduct:

(i)          the Court clearly concluded that this matter was beyond its jurisdiction and that it constituted an abuse of process;

(ii)         the Plaintiff brought the same action in the Ontario Superior Court of Justice where it was also dismissed for want of jurisdiction;

(iii)        the Plaintiff could properly have pursued relief, but did not, in two other available and appropriate jurisdictions; and

(iv)        the Plaintiff insisted on bringing a motion for default judgment in the face of the Defendant's motion to strike his claim.

[4]                 The Defendant argued for the maximum 7 units for item 5 (preparation of the motion to strike) as a function of voluminous documentation relative to the Plaintiff's employment history, the need for significant research of legal precedents and the requirement to respond to the Plaintiff's unnecessary cross-motion for default judgment, all contributing to considerable preparation time. The Defendant argued that the nature of this proceeding justified the maximum 3 units per hour available under item 6 for the appearance of 4.17 hours, that reporting to the client plus administrative follow-up justified the modest claim of $110.00 (1 unit) under item 25 for services after judgment and that the evidence supports claimed disbursements of $1,052.89. The Defendant argued further to Rule 408(3) that $330.00 (3 of 6 units from the available range for item 26) should be added for the work done relative to the assessment of costs, particularly given the conclusion of the Court that this matter was an abuse of process.

Assessment

[5]                 The Defendant had asked that the Plaintiff's reply submissions not be considered because they were tendered outside the timeframe of my directions. In the circumstances of this matter, I permitted them to be filed. They misconceive entirely the purpose of an assessment of costs, ie. to crystallize, in a quasi-judicial proceeding, the amount of an award of litigation costs.

[6]                 The evidence discloses a disbursement to produce nine copies of the Defendant's motion record. That number of copies exceeds the number claimed for the factum in the related appeal proceeding (Federal Court of Appeal file A-271-01). On the face of the Rules, appeal proceedings require comparable or greater numbers of factums, depending on the circumstances. I am not clear on the need here in this trial proceeding for as many as nine copies of the motion record. In the circumstances, while I find that the proposed addition of $330.00 for the assessment of costs is reasonable, I think that a reasonable and modest result overall, with particular regard to the factors of abuse of process and the vagueness of the evidence concerning the need for as many as nine copies of the motion record, would be to limit the Defendant to the amount presented in the bill of costs. I allow the Defendant's bill of costs as presented at $3,308.99.

(Sgd.) "Charles E.Stinson"

     Assessment Officer

Vancouver, B.C.

November 6, 2003

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-1759-00

STYLE OF CAUSE:                           NORMAND CLÉROUX

- and -

THE ATTORNEY GENERAL OF CANADA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES

REASONS FOR ASSESSMENT OF COSTS BY:              CHARLES E. STINSON

DATED:                                                                                       November 6, 2003

SOLICITORS OF RECORD:

Morris Rosenberg                                                                           FOR DEFENDANT

Deputy Attorney General of Canada