Date: 20050221
Docket: T-636-02
Citation: 2005 FC 265
BETWEEN:
ROBERT J. RICHARDS AND SANDRA L. RICHARDS
Applicants
-and-
THE MINISTER OF NATIONAL REVENUE
Respondent
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
Assessment Officer
[1] This application for judicial review was dismissed on December 12, 2003; the Order of the Court reads:
"For the reasons given, I cannot conclude the applicants have been refused access to personal information and, therefore, this Section 41 Privacy Act application is dismissed."
[2] Mr. John Ashley, the solicitor for the respondent, filed his bill of costs on September 21, 2004. The refusal of this Assessment Officer to award the Minister costs was appealed and his decision set aside by Mr. Justice Harrington on January 12, 2005, referring the matter back for an assessment. Upon a review of the Court file and of the multiple Motions, Orders and Directions therein, I have considered the factors referred to in subsection 400(3) of the Rules so as to allow a fair number of units within the discretionary range of Column III.
[3] Item 2. Preparation and filing of respondent's record and materials. The applicants submit that "no dates or details are itemized that indicate which records and materials were prepared as taxable services. The applicants opposeit anyway." In my view this service is appropriate and compensates the respondent for the filing of its application record on March 10, 2003. It will be allowed as submitted. A party's right to costs is a basic principle of law. I wish to quote from a judgment of Mr. Justice Pinard in Vespoli v. Canada [1988] 2 F.C. 125, at paragraph 15:
"Counsel for the respondent referred to several judgments from various U.S. States which all rely directly or indirectly on the following landmark decision by the Circuit Court of Appeals, Ninth Circuit, on December 2, 1935, in United States v. French Sardine Co., 80 F.(2nd) 325. In that case Wilbur J. said the following, at page 326 of his judgment:
"While the right to costs is ancillary to the judgment, it is a substantive right and not a mere matter of procedure.... The distinction between a right to costs and the procedure for the enforcement of that and other rights is pointed out in Fargo v. Helmer, 43 Hun (N.Y.) 17,19, where the court, quoting Judge Duer in Rich v. Husson, 8 N.Y.Super.Ct. (1 Duer) 617, said: "The rules by which proceedings are governed are rules of procedure; those by which rights are established and defined, rules of law. It is the law which gives a right to costs and fixes their amount. It is procedure which declares when and by whom the costs, to which a party has a previous title, shall be adjusted or taxed, and when and by whose direction a judgment [page 133] in his favor shall be entered.: The right to costs is not a question of procedure but is a substantive right."
[4] Item 5. Applicants'motion dated August 6, 2002. The applicants'position is "that one reason the respondent is not entitled to any fees for this service is the fact the motion was made because of the respondent's failure to file the notice required by Rule 305". The Order of Prothonotary Lafrenière rendered on August 9, 2002 deals with several motions before him and his analysis supports my view that respondent's costs are appropriate in the present circumstances. Moreover, I adopt Mr. Ashley's argument that costs should follow the event pursuant to the provisions of Section 52(1) of the Privacy Act.
[5] Item 5. Applicants'motion dated January 31, 2003. The applicants oppose this item on the ground the respondent neglected to file exhibits. However, on February 14, 2003 Prothonotary Morneau disposed of the motion by dismissing it with costs in the cause. This item is allowed as requested.
[6] Item 5. Applicants'motion dated February 19, 2003. The applicants argue the respondent cannot claim costs for this motion because counsel did not contest it and did not file any materials in response. The Court record clearly shows that Mr. Ashley filed his motion record in reply on February 27, 2003 (document # 77) and that costs of the motion were granted to the respondent in the Order dated March 19, 2003.
[7] Item 13(a). Counsel fees for preparation for hearing. Mr. Ashley points out the applicants did not oppose this claim in their written submissions and preparation was required for the hearing of the judicial review application. Indeed, this is self-evident; the respondent is entitled to be indemnified for this service.
[8] Item 14(a). Counsel fees to first counsel in Court. The respondent seeks 6 units for this service. Actually, the bill of costs indicates 4 hours at the 2 unit level, which should have totalled 8 units. However, it is not the responsibility of assessment officers to correct an oversight in a bill of costs. Mr. and Mrs. Richards contend that "the applicants requested that 2 hours be set aside for the November 20, 2004 hearing. The respondent requested that 3 hours be setaside. In any event, 4 hours was neither set aside nor used". The Court's Abstract of Hearing discloses the said hearing began at 09:30 on November 20, 2004 and ended at 13:15, a total duration of 3 hours and 45 minutes. This item is granted as sought.
[9] Item 25. Services after judgement. The applicants oppose this item in the absence of specific dates and details. In his submissions respondent's counsel contends that this service is set out in Tariff B and that it really speaks for itself. My own experience is that assessment officers allow the single unit without the need for supporting evidence because we assume that lawyers communicate and discuss judgments of the Court with their clients, thus incurring costs. Finally, the 2 units requested under item 26 are fair considering the amount of work involved in the preparation of the bill of costs and the written representations filed in response to those of the applicants.
[10] Disbursements. The applicants oppose all disbursements in the absence of clear and acceptable evidence. The amount of $37.04 is sought by the respondent for having served the applicants'solicitor with copies of Court documents by private courier and priority post. Mr. Ashley has identified each document sent with the date, the actual cost and the mode of delivery. In Grace M. Carlisle v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at page 5287 Taxing Officer Stinson writes:
"... 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." "... Further, Phipson On Evidence, Fourteenth Edition (London): Sweet & Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities".
[11] Respondent was required to file and serve documentation according to the provisions of Part 5 of the Federal Courts Rules. These disbursements are allowed because the latter were essential to the progress of the litigation.
[12] The sum of $296.00 had originally been claimed for photocopying charges. In his written response to the applicants submissions on costs, Mr. Ashley has revised that figure to $178.00. Here again counsel listed each document photocopied during the course of the litigation, with the date, number of pages and separate amounts based on the rate of 25 cents per page. Mr. Ashley correctly points out the above rate per page has been the usual practice in the Federal Courts for many years. An excerpt from the Reasons for Judgment of Mr. Justice Marceau in Vespoli v. Canada [1986] F.C.J. No. 358 is offered to clarify this issue:
"... As to the second issue, we think that, once the conclusion had been reached that the taxing officer had been right in adding to the bill of costs an item for photocopying disbursements considered by him as having been essential for the conduct of the action, the learned Motions Judge had no reason to intervene. The amounts allowed were not so inappropriare as to suggest that an error of principle had been committed in their calculation."
[13] Finally, an invoice from an independent printer in the amount of $37.52 is submitted for photocopying the respondent's record as required by the Rules. In view of the above analysis I am satisfied that all the photocopying charges were reasonably necessary for the conduct of these proceedings.
[14] The respondent's costs are assessed and allowed in the amounts of $3,630.00 for services and $252.56 for disbursements. A certificate of assessment will issue in the sum of $3,882.56.
Halifax, Nova Scotia
February 21, 2005
François Pilon
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-636-02
STYLE OF CAUSE: Robert J. Richards and
Sandra L. Richards
Applicants
-and-
The Minister of national Revenue
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
PLACE OF ASSESSMENT: Halifax, Nova Scotia
ASSESSMENT OF COSTS -
REASONS BY: François Pilon, Assessment Officer
DATED: February 21, 2005
SOLICITORS OF RECORD:
John Sims
Deputy Attorney General
Ottawa, Ontario for the Respondent
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