Date: 20050601
Docket: T-224-02
Citation: 2005 FC 795
BETWEEN:
SELWYN PIETERS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to the Reasons for Judgment and Judgment dated March 11, 2004, by the Federal Court dismissing this judicial review with costs. The application for judicial review was from a decision of the Administrator of the Federal Court dated June 27, 2000, dismissing the Applicant's grievance.
[2] On August 25, 2004, the Respondent requested that this assessment of its Bill of Costs be on the basis of written submissions and that the Assessment Officer issue directions setting a timetable for the service and filing of written materials. A schedule was issued on September 16, 2004, by the Assessment Officer for the serving and filing of materials in support and in opposition to the Respondent's Bill of Costs.
[3] On September 17, 2004, the Applicant filed a motion to be dealt with in writing seeking the following relief;
THE MOTION IS FOR:
1. an order declaring the Applicant Sewyn Pieters to be impecunious and thus able to proceed in forma pauperis in this and any other proceedings in the Federal Court;
2. an order that any assessment of costs in this case be done by a Judge of the Federal Court or in the alternative an assessor who is not an employee of the Court [sic] Administrative Service;
3. an order that no cost be assessed against the Applicant in the judicial review proceedings;
4. Such other remedies as the Honourable Court deems just and appropriate.
On October 14, 2004, the Federal Court in its Reasons for Order and Order dismissed this motion in its entirety.
[4] On October 19, 2004, the Applicant filed a motion for reconsideration pursuant to Federal Courts Rules 397(1)(b) and 399(2)(a) to be dealt with in writing of the Federal Court's decision dated October 14, 2004. The Federal Court in its Reasons for Order and Order dated November 22, 2004, dismissed this motion.
[5] The Respondent on December 15, 2004, forwarded correspondence to the Toronto Registry renewing its request for the assessment of costs to proceed by way of written submissions and further requested a new timetable be issued for the serving and filing of materials in support and opposition to the Respondent's Bill of Costs. A new schedule was issued on December 17, 2004, by the Assessment Officer for the serving and filing of materials. On January 11, 2005, the Assessment Officer granted an extension of time at the written request of the Applicant for the serving and filing of both parties' respective materials.
[6] It should be noted that on January 31, 2005, as a result of an internal re-organization of the Toronto Registry, this assessment of costs was re-assigned to another Assessment Officer. The parties on February 1, 2005, were advised that the Regional Taxing and Assessment Officer in Toronto now had carriage of this file for the purposes of the assessment of costs. In addition, the parties were advised the extension of time granted by the previously assigned Assessment Officer was still in effect. The Applicant filed his materials in opposition to the Respondent's Bill of Costs and supporting affidavit on February 11, 2005. The Respondent on February 24, 2005, filed its Submissions in opposition to the Applicant's affidavit and submissions.
The Applicant's Position on Preliminary Objections
[7] The Applicant is requesting that I recuse myself from assessing the costs of this judicial review since I am a Manager (term now used is 'Director') of the Courts Administration Service. At paragraph 5 of the Applicant's Submissions of Costs, he specifically states "He has worked with the Applicant and has also worked with, reported to and owe [sic] a duty of loyalty to the respondents." In fact, I note that paragraphs 5 to 17 of the Applicant's Submissions of Costs deal with the issues of conflict of interest, apprehension of bias and procedural fairness. With regard to the latter issues, the Applicant refers to the Values and Ethics Code for the Public Service (effective date: September 1st, 2003 and the specific section titled "Measures to Prevent Conflict of Interest"). In addition, the Applicant, in support of all three issues of conflict of interest, apprehension of bias and procedural fairness, refers to various passages from a number of cases which include Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. at p.394, MacKinnon v. Canada 2004 FC 1538 (A.O.), Samson Indian Nation and Band v. Canada [1998] 3 F.C. 3 (T.D.), Dulmage v. Ontario (Police Complaints Commissioner) (1994), 21 O.R. (3d) 356; 120 D.L.R. (4th) 590; 30 Admin. L.R. (2d) 203; 75 O.A.C. (Div. Ct.) and Baker v. Canada (Minster of Citizenship and Immigration), [1999] 2 S.C.R. 817 at p.849, para.45. Much of the Affidavit of Selwyn Pieters sworn February 10, 2005, deals with the request that I recuse myself and the associated three issues as outlined above which are part of the Applicant's preliminary objections.
[8] The Applicant has basically requested the preliminary objections be dealt with first,: but as an alternative argument has made opposing submissions regarding the Respondent's Bill of Costs.
Respondent's Position on Preliminary Objections
[9] In the Written Submissions of the Respondent Re: Respondent's Bill of Costs, the Respondent argues that there is no issue concerning conflict of interest, reasonable apprehension of bias and procedural fairness. The Respondent points out in paragraph 9 of the Respondent's Written Submissions:
These issues were raised by the Applicant's original motion dated September 16, 2004. In his Notice of Motion, the Applicant sought, inter alia, an order "that any assessment of costs in this case be done by a Judge of the Federal Court or in the alternative an assessor who is not an employee of the Courts Administration Service."
As mentioned in paragraph [3] above, on October 14, 2004, the Federal Court dismissed this motion in its entirety. The Respondent also notes, as does paragraph [4] above, that the Applicant's second motion dated October 18, 2004, was also dismissed by the Federal Court on November 22, 2004. For these reasons, the Respondent indicates at paragraph 14 of the Respondent's Written Submissions that it "... is both improper and vexatious for the applicant to raise these issues again in this context, and these arguments should be disregarded by the Assessment Officer."
Assessment Re: Preliminary Objections
[10] The Applicant has requested that I recuse myself as the Assessment Officer taxing this Bill of Costs because I am a Manager (Director) of the Courts Administration Service notwithstanding that I am an Assessment Officer as defined by Rule 2 of the Federal Courts Rules. The Applicant submits this dual role concerns him with regard to the assessment of this Bill of Costs and in his opinion give rise to the issues of conflict of interest, apprehension of bias and procedural fairness. I have read the Applicant's Submissions, the related case precedents which the Applicant submits are pertinent and his associated affidavit in support. What concerns me most regarding the Applicant's materials is the lack of reference to the issue of 'res judicata'. Black's Law Dictionary 8th Edition, 2004, (Thompson West Publishing Co.), defines this phrase:
res judicata (rays joo-di-kay-te or -kay-te). [Latin "a thing adjudicated"]
1. An issue that has been definitely settled by judicial decision. ...
In paragraph 4 of the Applicants Submissions of Costs, the Applicant does mention the dismissal of the actual judicial review application with costs by the Federal Court on March 11, 2004. However, there is no mention at all in these same submissions of the Applicant's motions referred to in paragraph's [3] and [4] above. A simple reading of those motions, coupled with the renewed request for recusal made by the Applicant, has left me with the obvious impression that this matter has been dealt with by the Federal Court.
[11] I must take this point a step further and point out that the Applicant's motion of September 16, 2004 sought the specific relief that the issue of costs be assessed by a Judge of the Federal Court and not an Assessment Officer from the Courts Administration Service. The Court in its Reasons for order and Order dated October 14, 2004 held that:
[9] Regarding his request that any assessment of costs be done by a Federal Court judge, the applicant asserts that the management of CAS were involved in providing instructions to the respondent in relation to his judicial review application. He exhibits copies of e-mail messages, between various management individuals, to support his contention that an employee of CAS would be incapable of providing an impartial assessment.
[10] The cornerstone authority for the test of reasonable apprehension of bias is [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. The apprehension must be reasonable and be held by reasonable and right-minded persons applying themselves to the question and obtaining the required information. The question is -- what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? The grounds must be substantial and the test should not be related to the very sensitive or scrupulous conscience. A real likelihood or probability of bias must be demonstrated and mere suspicion is not sufficient.
[11] The e-mail exhibits do not give rise to an apprehension that an assessment officer of the CAS will be biased in the pending assessment of costs. There is no evidence of even remote involvement, with respect to the applicant's judicial review application, of anyone who might be called upon to perform the assessment of costs. The onus of demonstrating bias lies with the person who alleges its existence. On the basis of the applicant's evidence, it is not reasonable to suggest that an informed person, viewing the matter realistically and practically, would conclude that an assessment officer employed by CAS would be biased against the applicant.
(Emphasis is mine)
As mentioned above in paragraph [4], the Federal Court dismissed the Applicant's motion for reconsideration which indicated to me that these matters had been finalized.
[12] Notwithstanding the decisions previously made, the Applicant has once more raised these issues and asked once again that they be dealt with as part of the assessment of costs. To assist me further, I rely on the reasons of Chief Justice McEachern in G.W.L. Properties Ltd. v. W.R. Grace & Co. Of Canada Ltd. (1992), 74 B.C.L.R. (2d) 283 (C.A.) at 287 and extend this reasoning to include issues before an Assessing Officer as an adjudicator:
A reasonable apprehension of bias will not usually arise unless there are legal grounds upon which a judge should be disqualified. It is not quite as simple as that because care must always be taken to insure that there is no appearance of unfairness. That, however, does not permit the court to yield to every angry objection that is voiced about the conduct of litigation. We hear so much angry objection these days that we must be careful to insure that important rights are not sacrificed merely to satisfy the anxiety of those who seek to have their own way at any cost or at any price. ...
(Emphasis is mine)
In my opinion, the Applicant has had and used at least two procedural opportunities to voice his concerns and have these issues decided by the Federal Court.
[13] The Applicant could have filed appeals of the judicial review decision dated March 11, 2004 and/or appealed the subsequent decisions of the Federal Court dated October 14, 2004 and November 22, 2004, to the Federal Court of Appeal. He did not do so. Nor did the Applicant seek directions of the Federal Court applications Judge under Rule 403 of the Federal Courts Rules that judicial directions be given to the Assessment Officer regarding this matter.
Rule 403:
Motion for directions
403. (1) A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400,
(a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or
(b) in a motion for judgment under subsection 394(2).
Motion after judgment
(2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs.
Same judge or prothonotary
(3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment.
Had the Applicant utilized the additional procedural opportunities available to him, the Federal Court and/or Federal Court of Appeal may have determined these issues on their merits rather than leaving them to be dealt with by the Assessment Officer. The Applicant chose instead to file his motions for relief in the Federal Court as was his right under the Federal Courts Rules. As outlined clearly in the Reasons for Order and Order of the Court dated October 14, 2004 and the Reasons for Order and Order dismissing the reconsideration of the previous decision, it is my opinion the issues of conflict of interest, apprehension of bias and procedural fairness have been dealt with, not once, but twice by the Federal Court. I conclude I have no authority to deal with these issues. For these reasons and those outlined above, I deny the Applicant's request to recuse myself as the Assessment Officer taxing this Bill of Costs.
[14] Although I have considered addressing a number of statements in the Applicant's submissions which I do not consider accurate regarding the implied independence or lack of it that an Assessment Officer of the Courts Administration Service may or may not possess, I have resisted that temptation. It is not my responsibility to educate the Applicant on the issues of impartiality and independence of Assessment Officers as adjudicators. Nor is it my responsibility to outline my authority as a Director of Courts Administration Service employed by the Treasury Board Secretariat or compare the latter position to my authority as an Assessment Officer as designated by the Chief Justice of the Federal Court under the Federal Courts Rules. I will leave that task to others more worldly and academically qualified than myself.
Applicant's Position on Respondent's Bill of Costs
[15] The Applicant raises concerns with regard to the issue of costs as dealt with by the Federal Court Judge who decided this judicial review. The Applicant expresses his concern in paragraph 19 of the Applicant's Submissions of Costs that the Federal Court exercised its discretion to award costs to the Respondent, but did so without allowing the Applicant to make submissions on the matter. In addition in paragraph 20, the Applicant further submits "...the application judge failed to adequately consider and weigh the factors set out in Rule 400 ... , when exercising his discretion to award costs." The Applicant submits the public interest is a matter that is taken into account when assessing costs and refers to Inverhuron & District Ratepayers' Assn. v. Canada (Minister of the Environment) [2001] F.C.J. No. 666 (T.D.), 2001 FCT 410 to support this assertion. The Applicant also indicates that he was successful in two motions and the issue of costs can be determined at this assessment since they were not taken into account by the Federal Court applications Judge.
[16] The Applicant indicates the assessable service for "Assessment of Cost" should be disallowed and all the units for the assessable services for this matter should be reduced. In addition, the Applicant submits the "...costs for the preparation of the Respondent's written materials shall not be included in the assessment of costs."
[17] With regard to the disbursements claimed by the Respondent, the Applicant submits that the photocopy charges are excessive and offers alternatives that the Respondent could or should have utilized to reduce these costs. The Applicant refers to two case precedents Windsurfing International Inc. v. Bic Sports Inc. [1985] F.C.J. No. 826 (T.D.) and W.H. Brady Co. v. Letraset Canada Ltd. [1985] F.C.J. No. 1025 (T.D.), 7 C.P.R. (3d) 82 in support of the Applicant's opposing submissions with regards to the photocopy disbursements claimed by the Respondent.
Respondent's Position on Bill of Costs
[18] The Respondent opposes the Applicant's request that the Assessment Officer "take into account" the two decisions of the Federal Court from interlocutory motions dated July 22, 2002 and November 27, 2002. At paragraph 16 of the Respondent's Written Submissions, the Respondent argues the "... Applicant is not entitled to the costs of either of these unsuccessful motions, nor can the Assessment Officer consider these costs in the assessment of costs for this application."
[19] The Respondent notes that the disbursements claimed have been itemized and documented as exhibits to the Affidavit of Lisa Minarovich, sworn May 19, 2004, and reflect the costs paid out by the Respondent for the photocopying, serving and filing of the Respondent's materials.
[20] The Respondent submits that the range used for the assessable services in Column III, Tariff B of the Federal Courts Rules was based on the time taken to review and respond to the Applicant's voluminous 477-page Application Record as well as the complexity of the legal issues in the application. In addition, the Respondent submits that the taxing of costs, the preparation of the Bill of Costs, Affidavit of Disbursements and these written submissions were considered in requesting the unit range for the assessable services. The Respondent submits the assessable services and disbursements are reasonable and requests full reimbursement of these amounts which he submits he is entitled to.
Assessment
[21] I have reviewed all the materials in the record and have summarized only those issues which are relevant for the disposition of this assessment.
[22] I noted above in paragraph [15] that the Applicant makes reference to Rule 400 of the Federal Courts Rules which are the factors to be considered when exercising discretion to award costs. The Applicant further submits in paragraph 21 of his submissions the "... public interest is a matter that is taken into account when assessing costs." The Federal Court did exercise its discretion to award costs which is obviously within its authority to do so and which I note gave the assigned Assessment Officer the authority to assess this Bill of Costs and utilize Rule 400. There is no evidence to even remotely suggest that the Federal Court in deciding this judicial review did not take into consideration all the materials before it as well as the pertinent statutes which would include the Federal Courts Rules.
[23] I do not agree with the Applicant's Submissions of Costs that the decisions of the Federal Court dated July 11, 2002 and November 27, 2002, should be taken in to account when assessing these costs. The decision of the Federal Court in Pieters v. Canada (Attorney General) [2002] F.C.J. No. 1079 reads:
1. The motion for an order pursuant to Rule 318 is dismissed.
2. The time for the Applicant to file his Applicant's record is extended for a period of 30 days from July 22, 2002.
3.The Applicant's costs of this motion are reserved for consideration by the Judge who will hear the application for judicial review. The respondent is not entitled to the costs of this motion.
(Emphasis is mine)
This decision of the Federal Court specifically indicated that the Judge hearing the judicial review would decide the issue of costs for this motion. However, the Federal Court applications Judge did not order costs for the motion. I rely on Mark M..Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, par. 105.7:
....Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at trial with no mention of costs, it is as though the judge had said that he "saw fit to make no order as to costs"....
With the same reasoning, I also rely on Kibale v. Canada (Secretary of State), [1991] 2 F.C. D-9 (T.D.) which states:
If an order is silent as to costs, no costs are awarded.
In Pieters v. Canada (Attorney General) [2002] F.C.J. No. 1662, the Order of the Federal Court dated November 27, 2002 reads:
1. The motion is dismissed.
2.The applicant shall have the costs of this motion, if the applicant is successful in the cause, such costs fixed in the amount of $350.00.
(Emphasis is mine)
In this decision, the Order of the Federal Court contained the underlined expression (emphasis is mine) which indicated that a condition was to be met before costs of the motion would be allowed. Simply put, the condition was not met and costs will not be allowed for this motion. Notwithstanding the Applicant's Submissions of Costs, for the reasons mentioned in this paragraph and considering these particular facts and circumstances, no costs will be allowed for either of the decisions of the Federal Court dated July 11, 2002 and November 27, 2002.
[24] The Applicant submits the photocopy disbursements are excessive and should be disallowed. He refers to Windsurfing International Inc. v. Bic Sports Inc. [1985] F.C.J. No. 826 (T.D.) and W.H. Brady Co. v. Letraset Canada Ltd. [1985] F.C.J. No. 1025 (T.D.), 7 C.P.R. (3d) 82 to support this submission. After reviewing both cases, I am of the opinion the following excerpt from Diversified Products Corp. v. Tye-Sil Corp. (1990), 41 F.T.R. 227 (T.D.), 34 C.P.R. (3d) 267 (T.D.) is more on point:
... The item of photocopies is an allowable disbursement only if it is essential to the conduct of the action. Therefore, this is intended to reimburse a party for the actual out-of-pocket cost of the photocopy. The $.25 charge by the office of plaintiffs' counsel is an arbitrary charge and does not reflect the actual cost of the photocopy. A law office is not in the business of making a profit on its photocopy equipment. It must charge the actual cost and the party claiming such disbursements has the burden to satisfy the taxing officer as to the actual cost of the essential photocopies.
...
In addition, I refer to the Federal Courts Rules, Tariff B, subsection (4):
1(4) Evidence of disbursements - No disbursement, other than fees paid to the Registry, shall be assessed or allowed under this Tariff unless it is reasonable and it is established by affidavit or by the solicitor appearing on the assessment that the disbursement was made or is payable by the party.
The evidence of the photocopy disbursements are found in the Affidavit of Lisa Minarovich, sworn May 19, 2004 and copies of the invoices from are attached as Exhibit "B" and Exhibit "C", respectively. These are the Respondent's "...actual out of pocket cost of the photocopy..." expenses for this proceeding and it should be noted these photocopies were done outside of the Respondent's office as opposed to in-house photocopies that are mentioned above in Diversified Products Corp., supra. These disbursements and the associated invoice from Avanti Paralegal Services will be allowed since it is my opinion they were essential to the conduct of the proceeding and have been substantiated by affidavit.
[25] It is my opinion that all of the assessable services are within Column III, Tariff B of the Federal Courts Rules. The units claimed appear reasonable, justified and will be allowed in their entirety.
[26] The Bill of Costs in T-224-02 is assessed and allowed in the amount of $1,418.92 which includes assessable services, a corrected amount for disbursements and applicable GST. A certificate is issued to the Respondent in this Federal Court proceeding for $1,418.92.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
June 1st, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-224-02
STYLE OF CAUSE: SELWYN PIETERS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS
REASONS BY: PAUL G.C. ROBINSON, Assessment Officer
DATED: June 1st, 2005
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Email this Content