Date: 20040426
Docket: T-311-02
Citation: 2004 FC 618
BETWEEN:
NATASHA RUCKPAUL
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
CANADA
Respondent
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
Assessment Officer
[1] This application for judicial review was allowed with costs on January 30, 2004. Ms. Kimberley Wylde, the solicitor for the Applicant filed her bill of costs on March 12, 2004 and requested that it be assessed without the personal appearance of parties. The Canadian Human Rights Commission (the "Commission") had been granted the status of intervener in these proceedings.
[2] Ms. Lori Rasmussen, the solicitor for the respondent, filed written submissions on April 2, 2004 and Ms. Wylde followed with a response on April 16, 2004. The maximum number of units is allowed for item 1. Ms. Rasmussen acknowledges that "... in light of the volume of materials involved in the application record, this may be reasonable...".
[3] The applicant claims seven units under item 5 for the preparation of a motion and one unit under item 6 for appearance on the motion. Counsel for the respondent points out that four motions were brought in the course of this proceeding. The Order dated July 30, 2002 does not mention costs; the Order rendered on September 4, 2002 specifically ordered costs against the Commission in the amount of $1,200.00; the Order of October 28, 2002 granting the Applicant an extension of time included the provision "no order as to costs" and the fourth Order dated January 28, 2003 allowing the Commission's leave to intervene is silent as to costs.
[4] Ms. Wylde argues that the motion heard before Mr. Justice Mackay on July 19, 2002 "required significant preparation, which leads us to claim for these additional costs". Ms. Rasmussen replied "that no costs related to an interlocutory motion may be allowed on a final taxation where the order on the motion is silent as to costs" and she refers to several leading cases on this issue. The respondent's position is correct. Assessment officers cannot grant costs on motions unless the Court has ordered them. Items 5 and 6 will be disallowed.
[5] The Applicant claims seven units for counsel fees to prepare for the hearing. In response Ms. Rasmussen writes that "With respect to item 13, under Tariff B, two to five units are allowed for preparation for trial.... that the hearing was completed in one day... the hearing of this matter did not necessitate preparation of witnesses or subpoenae." In her opinion two or three units would be acceptable. In her written submissions Ms. Wylde has shown, to my satisfaction, that this matter was fairly voluminous and somewhat complex because her client was faced to deal with two opposing parties. I think it is appropriate to allow five units.
[6] The Applicant claims seven units for appearing at the hearing under item 14. However, Tariff B does not provides for units alone, but for a combination of units and hours in Court (two or three units per hour). The hearing lasted approximately six hours. Although it may not be my role to correct an oversight in the bill of costs, I am not willing to deny the Applicant any compensation for this assessable service; in doing so I am mindful of the general principle provided in Rule 3:
"These Rules shall be interpreted and applied so as to secure the just (underline is mine), most expeditious and least expensive determination of every proceeding on its merits".
I will allow seven units even though the Applicant could have recovered a higher amount if counsel who drafted the bill of costs had chosen the appropriate item for that service.
[7] Under item 15 seven units are sought for the preparation and filing of written arguments. The respondent questions the legitimacy of this service because the Tariff refers to such written argument "where requested or permitted by the Court". In her reply Ms. Wylde confirms the claim is for the drafting of the written arguments which were included in the Applicant's Application Record. She adds that the preparation of the Application Record and of the written arguments both required significant effort and therefore their client should be compensated for both.
[8] I do not agree. Item 1 is intended to compensate parties for the preparation and filing of their Application Record, not just a portion of it. Item 15 can only be claimed when the Court has specifically ordered the filing of further written material. It is clearly not the case here. Tariff B is not designed to compensate successful litigants for all their expenses. Party and party costs are based upon the well known principle of "partial indemnity". As Assessment Officer Stinson once wrote, "it would be onerous for an adverse party to have to pay the full costs of his/her own solicitor as well as those of the successful litigant".
[9] Items 25 and 26 will be allowed as presented at one and two units respectively. The respondent objected to item 26 on the basis that the assessment was done in writing. In her view this service falls under item 25 for "services after judgment". Ms. Rasmussen's position is mistaken. Items 25 and 26 indemnify parties for completely separate services.
[10] Finally two units are asked for the services of students-at-law and paralegals. Although the affidavit in support of the bill of costs in not absolutely clear about who provided these services I will allow them on the basis that the respondent did not object and that it does not seem unreasonable in the circumstances of this case.
Disbursements
[11] Charges for long distance calls, for courier services, for Quicklaw research and for court fees are reasonable and allowed as submitted. The final claim is for 9,327 photocopies at $0.35 per page. Ms. Rasmussen maintains that disbursements related to an interlocutory motion form part of the costs of the motion. She points out that the Court awarded no costs on the first and third motions, and costs against the Commission on the second motion; briefly, the respondent should not have to pay for photocopies on the first and third motions and the costs related to the second motion shouldbe borne by the Commission.
[12] I agree with Ms. Rasmussen's arguments. No costs can be recovered for motions where none were granted by the Court. As for the second motion, the Commission, an intervener in these proceedings, had already been ordered to pay $1,200 for the costs of that motion.
[13] Ms. Rasmussen has produced a chart to establish an estimate of the photocopies made by the Applicant to prepare the notice of application, the affidavit, the supplementary affidavit and the application record. Ms. Wylde does not dispute the numbers on that chart. The charge of $0.35 per page will be reduced to $0.25 to reflect the current practice in the Federal Court. The amount of $1,494.75 is allowed for 5,979 copies made.
[14] The bill of costs of the Applicant is assessed and allowed in the amounts of $3,036 for fees and $2,552.62 for disbursements. A certificate of assessment will issue in the amount of $5,588.62.
Halifax, Nova Scotia
April 26, 2004 François Pilon
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-311-02
STYLE OF CAUSE: Natasha Ruckpaul v. Citizenship & Immigration Canada
ASSESSMENT IN WRITING WITHOUT THE PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS - REASONS BY: François Pilon
DATE OF REASONS: April 26, 2004
SOLICITORS OF RECORD:
Stewart McKelvey Stirling Scales
Fredericton, NB For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada, Ottawa, ON For the Respondent
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