McCaul v. Canada (Attorney General), 2004 FC 1119

Date: 20040812

Docket: T-1649-02

Citation: 2004 FC 1119

BETWEEN:

                                                               BRIAN McCAUL

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            ASSESSMENT OF COSTS - REASONS

CHARLES E. STINSON

Assessment Officer

[1]                The Applicant sought judicial review of a decision of the National Parole Board (hereafter "the Board") dated January 8, 2002 ordering his detention until the expiry of his sentence. The Applicant had been released from custody by the time the judicial review had been scheduled. The Court determined that the application for judicial review was moot and dismissed it with costs. I issued a timetable for written disposition of the Respondent's bill of costs, presented at $1,918.45 and $34.50 for counsel fees and disbursements respectively.

The Applicant's Position

[2]                The Applicant argued for minimum costs further to Rule 400(3)(c) and (h) on the basis of the importance and public interest associated with the core issue intended for disposition, i.e. whether the Board is entitled to hold an allegation against a person if said person has been tried and found not guilty of that allegation. However, it was not a complex issue and it was appropriate for the Applicant to raise it. The Applicant argued that it is significant that this Court granted an extension of time to bring this application for judicial review notwithstanding materials disclosing that the Applicant had already been released. Relative to Rule 400(3)(i), the conduct of the Applicant did not unnecessarily lengthen the proceeding. The Applicant conceded $34.50 for disbursements, but argued that only $300.00 should be allowed for counsel fees.

The Respondent's Position

[3]                The Respondent argued further to Rules 409 and 400(3) that there is nothing in the circumstances of the conduct of this proceeding to warrant a reduction of costs. Rather, further to Rule 400(3)(i) and (k), the prior release of the Applicant in turn rendering this proceeding moot justifies higher costs. The Respondent argued for the maximum 7 units under item 2 (preparation of record and materials) because of mootness and because of the research required for certain other issues, i.e. the limits of the Board's authority and the right of the Applicant to even proceed given other unused avenues of appeal. The Respondent asserted that other counsel fee items were claimed at minimal amounts and argued further to Rule 408(3) for a modest allowance of 3 units in the circumstances for item 26 (assessment of costs).

Assessment

[4]                In Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage) [2002] F.C.J. No. 1795 (A.O.), I concluded that the application of Rule 400(3) factors against the interest of successful litigants would require carefully considered discretion. In the circumstances here, I do not think that a public interest factor can be applied in favour of the Applicant to minimize the costs payable by him. However, I am not convinced that maximum fees should be allowed for items 2 and 13 (preparation for hearing). I allow only 5 and 3 units respectively. I allow the other counsel fee items as presented, including the 3 units claimed under item 26. Likely through inadvertence, the Respondent has applied a unit value of $112.85, being the result of the calculation performed on March 15, 2002 by the Chief Justice of the Federal Court of Appeal per Tariff B4(1). However, Tariff B4(2) required that said result of $112.85 be rounded down to $110.00. I have adjusted the claims in the bill of costs accordingly.. The Respondent's bill of costs, presented at $1,952.95, is assessed and allowed at $1,464.50.

(Sgd.) "Charles E. Stinson"

             Assessment Officer

Vancouver, British Columbia

August 12, 2004           

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               T-1649-02

STYLE OF CAUSE:                          Brian McCaul v. Attorney General of Canada

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL

APPEARANCE OF PARTIES

REASONS FOR ASSESSMENT OF COSTS BY:              CHARLES E. STINSON

DATED:                                                                                  August 12, 2004

SOLICITORS OF RECORD: