Date: 20000706
Docket: IMM-1390-96
In the matter of an action for declaration between Manickavasagam Suresh and Her Majesty the Queen, pursuant to section 17 of the Federal Court Act:
AND IN THE MATTER OF the detention of Manickavasagam Suresh;
AND IN THE MATTER OF section 52 (1) of the Constitution Act, section 2, 7, 9, 15 an 24(1) of the Canadian Charter of Rights and Freedoms, 1982
AND IN THE MATTER OF section 1 and 2 of the Canadian Bill of Rights, R.S.C. 1985 appendix 111.
BETWEEN:
MANICKAVASAGAM SURESH
Plaintiff
- and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ASSESSMENT OF COSTS - REASONS
P. Pace
Assessment Officer
| [1] This is an assessment of the Defendant"s costs pursuant to the order of the Court dated the 21st of October, 1999. The parties having agreed, this assessment proceeded on written representations. |
| [2] This action was commenced by statement of claim on the 23rd day of April, 1999. In the Statement of Claim, the plaintiff sought relief in the form of a declaration, an injunction and as well, general and punitive damages. The cause of action allegedly arose from the detention of the plaintiff, pursuant to a Certificate issued against him under section 40.1 of the Immigration Act. |
| [3] In her written representations in response to the Defendant"s Bill of Costs, counsel for the plaintiff raises a preliminary objection to this assessment. She submits as follows: |
| As a preliminary matter, I note that there would appear to be a discretion on the part of an assessment officer to delay assessment of costs until the litigation is concluded. There is jurisprudence which supports the view that costs ought not be taxed and made payable until the litigation is concluded to avoid a multiplicity of assessments, to avoid "bridging" the parties, and the court, with additional costs resulting from assessments which may become varied or even reserved by later rulings. There is jurisprudence which goes the other way, indicating that where no stay is sought or granted by the appellate court, a party may proceed with assessment of costs. This jurisprudence is conveniently summarized in Zundel v Canada (CHRC), [1999] F.C.J. NO. 1239. In the Zundel assessment pending resolution of the litigation. In that case, the assessment officer declined to assess the costs at that time, noting that the costs award did not indicate it was to be "forthwith". I would note that in this case the judgement of the Court on the status review is under appeal. There was no notice that costs would be considered and costs, as noted in Sax v Chomyn, [2000] F.C.J. No. 145 are not normally awarded by the judge, except in compelling circumstances. No compelling circumstances were presented by the Defendant who did not take advantage of the opportunity to respond to the Plaintiff on the notice of status review. |
| This action concerned a lengthy detention of two and a half years of the Plaintiff, with no criminal or otherwise unlawful activity on the part of the Plaintiff. Clearly the assessments of costs now, and again later after the appeal is heard, increases costs for both parties. This Plaintiff does not need additional costs in light of the length of time he was kept in jail and unable to constructively participate in society, and in light of the post traumatic stress syndrome from which he suffers as a result of the detention. I would ask that you exercise your discretion and defer this assessment until the appeal is heard and determined in the Court of Appeal. That appeal is proceeding. I must file the Appellant"s Memorandum of Argument by this coming Monday, and then the only matters [sic] left is for the Respondent to file a Reply Memorandum and a file a Requisition for Hearing. |
| [4] Counsel for the Defendant sets out his position on the request for a deferral as follows: |
| In this matter the Court has ordered that "The plaintiff shall pay the defendant"s costs upon assessment". If the plaintiff had any basis for requesting a deferment of the assessment ordered by the Court, he should have moved the Court to stay the order. To succeed on such a motion, the plaintiffs would be required to provide an evidentiary foundation for the stay. The plaintiff did not bring such a motion but is, instead, attempting to obtain a stay of a Court Order without any evidentiary foundation, and upon facts set out in a letter that are quite contentious. It is submitted that an assessment officer should not defer a Court ordered assessment absent a proper evidentiary foundation or direction from the Court. |
| [5] Counsel for the plaintiff responded as follows: |
| It is clear from the jurisprudence, which I cited in my original submissions, that an assessment officer has discretion to defer assessment pending resolution of the litigation. I am not sure why the Defendant in this case is seeking to enforce the costs order before the litigation is concluded because it is certainly not been my experience that this is done normally - it is not normally done. It would appear particularly "mean spirited" to enforce the order prior to the conclusion of the litigation in this case, in that the Defendant held Mr. Suresh in the psychiatric wing of the Don Jail, a short term detention facility, for more than two years even though he was not alleged to have engaged in any act of violence or similar kind of criminal activity. Of all the litigants the state could go after on costs awarded (and does not), Mr. Suresh is one of the most vulnerable having been physically prevented from working for so long and now from having any contact with Canadians from his own country, who could assist him. |
| The plaintiff reiterates his request for deferral of the assessment and relies in reply on his submissions already presented. |
| [6] I have considered the argument by counsel and reviewed the above mentioned jurisprudence as well as other relevant cases, and in the circumstances of this case, I am of the view that in order for an assessment officer to exercise his/her discretion to defer an assessment of costs awarded by the Court, compelling circumstances would have to exist. While I am not proposing that an outstanding appeal has no bearing or effect on this assessment, I am not, however, convinced that the existence of an appeal, by itself, is sufficient to compel me to defer the assessment. While I find the plaintiff"s argument on this point to be articulate, it is my view that it is the kind of argument that should have been made to the Court on a motion for stay of the order. As an assessment officer, I am not empowered to make such an order. No such stay was ordered nor was one sought. Consequently, what I have before me today is a valid Court order providing for an award of costs to the defendant. And, as the order provides, those costs are to be determined either by way of assessment or through the agreement of the parties. No agreement having been reached, I am bound by the order of the Court to assess costs. |
| [7] A second issue raised by the plaintiff concerns the format of the Bill of Costs as submitted. It is counsel"s contention that this Bill, as drafted, is not in compliance with Tariff B, and as a consequence she has had some difficulty responding to the Bill. |
| [8] Counsel for the Defendant submits that the Tariff allows for a Bill to be expressed against assessable services set out in the Tariff, based on either units sought or hours claimed. Counsel submits that the Bill of Costs, as drafted, is in substantial compliance with the Tariff. |
| [9] While I would agree with counsel for the plaintiff that the Defendant"s Bill of Costs could have been drafted in a more comprehensible fashion, I am not convinced that the approach taken by counsel for the defendant is fatal to this assessment. Section 1 of Tariff B does not make specific reference to a form for a Bill of Costs. However, section 1(2) of Tariff B does set out the required elements to be included in the Bill. i.e. the column and number of units sought and when the service is based on a number of hours, the number of hours claimed and be supported by evidence thereof. Counsel for the Defendant does go through each item in his written representations and relates it to the number of units being claimed. Furthermore, in my opinion, counsel for the plaintiff adequately deals with each item claimed by the Defendant in her reply representations. |
| [10] Having regard to the general principle set out in Rule 3 of the Federal Court Rules 1998, I will proceed with this assessment on the Bill of Costs as drafted. |
| [11] Complexity - It is the plaintiff"s position that the stage reached in this action did not involve particularly complex work. She further states that most of the time was spent on a variety of motions to adjourn, to schedule, and to strike. She points out that this was one of many actions involving this plaintiff which were proceeding simultaneously. As well, that the other proceedings involved many of the same issues raised in this case. |
| [12] The Defendant"s position, on the other hand, is that the issue involved in this action was a novel one requiring extensive research of not only the domestic law, but international law as well. Due to the importance of the issues and their complexity, two lawyers were assigned to deal with the action, one a senior litigator, and the other, an immigration law specialist. |
| [13] In her reply submissions, counsel for the plaintiff reiterates that this action was in tandem with other proceedings. She submits that, if there was extensive research done into national and international law, it was not done in the first instance in respect of this case, but rather in the other similar cases involving this plaintiff as well as other litigants. Those cases were fully developed, some of which pre-dated these proceedings. She further points out that the issues were also fully developed in response by the Minister in the original section 40.1 Immigration Act proceedings involving this plaintiff. |
| [14] Having regard to Federal Court Rules 409 and 400 (3), I am of the view that there was some level of importance and complexity in this case. Plaintiff"s counsel herself states that the issues raised by the plaintiff were significant in the context of the public interest. Furthermore, she submits that, had the action proceeded to trial, it would have been characterized as being "somewhat complex." |
| [15] In my opinion having regard to the nature of this case, whether or not the action reached a trial date does not impact on the complexity of the issues raised by the cause of action. The relevant consideration, is the weight to be given to the importance and complexity of the issues in this action existing at the time the Defendant contemplated defence of this particular action. As set out above, counsel for the plaintiff submits that this action was in tandem with other proceedings. She further alleges that the issues were fully developed by the Minister in the original section 40.1 proceedings. I have some knowledge of other similar proceedings involving this plaintiff, as well as other similar proceeding involving other litigants. It is my view that, given the nature of those proceedings, some, if not the majority of the issues raised in this litigation, were also raised in those proceedings. Consequently, it would seem impractical and not cost effective to conduct research which has already been done. However, I recognize that counsel for the defendant could rely upon the previous research, but still was required to gauge the particular circumstances of this case. I have reviewed the Court record in this case and I do not find anything that would indicate to me that this was a highly complex litigation process. |
Item 2. Pleading:
| The Bill of Costs requests $715.00 under this item and sets out the hours worked and rate per hour for two counsel and a law clerk. Tariff Item 1 does not contemplate an award based on an hourly rate, but a unit award of between 4 and 7 units. Counsel for the Defendant suggests that the defendant is entitled to the full $700, or 7 units given the time actually worked conducting legal research. Counsel for the plaintiff submits that the time alleged as spent in research seems to be exaggerated and reiterates her submission with respect to the same research having been undertaken in other cases. |
| [17] Having regard to the provisions of Rule 400(3) and Rule 409, as well as my comments with respect to complexity and research, I will allow 5 units for this item. |
Item 7. Discovery and Examinations:
| The Bill of Costs sets out the hours spent and the hourly rate for this item and claims $1,820.00. In his written representations, counsel for the defendant points out that neither the plaintiff"s nor the defendant"s Affidavits of Documents are extensive. However, there were extensive documents to be reviewed, and assessed in regards to relevance. He further submits that the time to perform this work was also extensive and submits that 5 units should be allowed for this task. |
| [19] Counsel for the plaintiff argues that the "applicants" [sic] Affidavit of Documents listed no documents for examination. The Defendant"s affidavit listed the section 40.1 Immigration Act Security Certificate. She suggests the time claimed by the defendant is excessive and that 2 units be allowed under this item. |
| [20] Having regard to the content of both Affidavits of Documents, I am in agreement with counsel for the plaintiff that the 5 units claimed would seem to be excessive. However, and notwithstanding the extent of the Affidavits of Documents, counsel for the defendant did have to review a number of documents and make determinations on relevance. I will allow 3 units for this item. |
| The defendant sets out the hours spent and the hourly rates and claims $1300.00 with respect to Mr. Leising, General Counsel, $1365.00 with respect to |
| Ms. Mitchell, counsel and $150.00 with respect to Ms. Erramuspe, law clerk. In his submissions, Mr. Leising notes that the meetings to prepare the defendant"s representative, an expert on counter intelligence, were conducted in Ottawa and were lengthy. He claims 5 units for this preparation. He further submits that the preparation for the plaintiff"s discovery was also lengthy as it required the review of two psychiatric reports produced by the plaintiff, as well as a review of the entire file after a long period of inactivity. He claims 5 units for this preparation. |
| [22] Counsel for the plaintiff argues that the defendant"s claim for the time spent for reviewing the documents appears exaggerated. She argues that, as none of the CSIS information was disclosed, a review of these documents was a wasted effort, since all the documents were reviewed by Justice Department counsel in the section 40.1 proceeding and were not released. Furthermore, she argues that the review of the Suresh records at CSIS or the Immigration Commission is usually a task assigned to Immigration or CSIS officials. She submits that the total number of units allowed should be no more than 3 units. (i.e. 1 unit for preparation of the defendant"s representative and 2 units for preparation for Mr. Suresh"s examination). |
| [23] I will allow 2 units for the preparation of defendant"s representative and 3 units for preparation of Mr. Suresh"s examination for a total of 5 units under this item. |
| The Defendant"s submissions indicate that the examination of the defendant"s representative required just under three hours and claim 3 units per hour for Mr. Leising"s attendance. |
| [25] With regards to the examination of the plaintiff, counsel submits that a half-day was set aside for the examination. However, the examination had to be adjourned because the plaintiff was unable to address issues relating to damages. The time allocated was lost and counsel for the defendant claims 3.5 hours at 3 units per hour. |
| [26] In her submissions, counsel for the plaintiff points out that while counsel for the defendant claims just under three hours for the discovery of Mr. Boeckaer (defendant"s representative), the transcript indicates it took two hours ten minutes. She submits that this is another example of exaggeration on the defendant"s part. |
| [27] With respect to the aborted discovery of Mr. Suresh, counsel submits that it is her belief that counsel is not permitted to claim time that is not spent in performing an assemble service. |
| [28] With regards to Mr. Boeckaer"s examination, I will allow two hours multiplied by 2 units. |
| [29] With respect to Mr. Suresh"s examination, if my understanding of counsel"s submissions is correct, the examination of Mr. Suresh did in fact commence, but was adjourned after approximately one half-hour. Notwithstanding, counsel for the defendant is seeking indemnification for the three hours allocated and lost. Tariff item 9 provides for an award of units on a per hour basis for "attending on examination". |
| [30] The term indemnification is clearly defined by Stinson A. O in Byers Transport Limited v Dorothy Kosanovich etal A-333-94 wherein he states: |
| The term, indemnify, means that one person compensates another for the latter"s actual loss or expense associated with some activity. In litigation, the concept of indemnification captures the extent of the obligation of an unsuccessful litigant to pay for the expense of litigation to which his opponent was put. If his opponent was not liable to pay fees to his solicitor for the latter"s professional expertise or to pay given disbursements despite having received the service in either or both instances, the unsuccessful litigant is not obliged to indemnify said opponent because a basic principle of costs is that a litigant shall not profit by them. Thus, Kosanovich"s premise that the fees portion of an account would be indemnifiable, even if the case had been pursued pro bono is untenable. |
| [31] The defendant"s submission merely states that one half-day was set aside for the oral examination of the plaintiff which had to be adjourned, and that the time allocated, i.e. 3.5 hours, was lost. I can find no supportive evidence or argument in the defendant"s submissions as to what activity or services this three and one-half hours cover. Consequently, having regard to the wording of Tariff B item 9, the Byers v Kosanovich case supra, and in the absence of any direction from the Court, I will allow one half-hour at two units per hour for attendance on the discovery of Mr. Suresh. |
| Under this tariff heading, the defendant claims costs in relation to 5 interlocutory motions. The Plaintiff"s submissions in response are as follows: |
| Services Rendered in Respect of Motions: Mr. Leising has claimed 29 hours. Ms. Mitchell has claimed 51.5 hours. Ms. Erramuspe, the law clerk has claimed 3.5 hours. The Defendant has not broken down the time claimed under this category and so it is difficult to make submissions in respect of the time spent by both counsel. As with the above, there does not appear to be a provision to permit billing of the time of an "in house" law clerk. Column III of Tariff B permits 3-7 units for preparation and filing of a contested motion and 1-3 units for attendance on the motion, per hour. |
| There were five motions, and one informal request to arrange scheduling. The motions and request are set out below in respect of appearances and orders of the Court: |
- . Plaintiff"s Motion on Directions to set Schedule, May 23, 1996, amended September 4, 1996: schedule set, no order as to costs (February 20, 1997, per A.C.J.)
| b. Defendant"s Motion to Adjourn Plaintiff"s Motion to set Schedule, May 27, 1996: appears not to have been dealt with directly, no order as to costs (May 27, 1996, per A.C.J.) |
| c. Defendant"s Motion to Strike, August 14, 1996: personal appearance of counsel on September 6, 1996, appearance by Mr. Leising, costs were ordered in the cause (November 8, 1996, per A.C.J.) |
| d. Defendant"s Motion to Adjourn, July 17, 1997: no personal appearance, no order as to costs (August 8, 1997, per McKeown, J.) |
| e. Plaintiff"s Request for a Hearing Date, March 6, 1998: teleconference, Mr. Leising appearing, no order as to costs (March 26, 1998, per Hugessen, J.) |
| f. Plaintiff"s Motion to Schedule, March 15, 1999: no personal appearance, no order as to costs, direction issued only (April 26, 1999, per Tremblay-Lamer, J.) |
As I understand it costs on a motion may not automatically be claimed, but must be given in respect of each motion pursuant to section 401. (1) of the Federal Court Rules, 1998. The Court has concluded that each motion is discrete. AIC Ltd. v Infinity Investment Counsel Ltd., [1998] F.C.J. No. 904; Veselinovic v M.N.R., [2000] F.C.J. No. 104.
It would appear that the only motion which the Defendant may bill for is the motion to strike as costs were ordered in the cause on this motion.
The motion to strike was not complicated in the sense that while constitutional issues were raised by the Plaintiff, the Defendant was seeking to strike out the claim basically on the basis of the issues having already been determined by the Court"s judgement in Ahani v The Queen . The Court struck that part of the claim which was identical to the claim raised by Mr. Ahani. The lack of complexity is apparent in the Defendant"s Memorandum of Argument in support of the motion: it is less than two pages and the substantive argument is two short paragraphs relying on two cases, the test for striking a statement of claim, Hunt v Carey and it being plain and obvious that the claim should be struck, Ahani v The Queen. The supporting affidavit just appends correspondence and a motion from another case. The units for preparation should be fixed at 3 to reflect the lack of complexity and time involved. Tariff Item 5 does not permit hours to be applied as multiplier, Simmons I.P. Inc. v Park Avenue Furniture Corp. [1999] F.C,J. No. 1382.
I cannot find my record of how long the motion took in Court. In the absence of a claim on specified hours, at best an hour should be fixed. The units should be set at 1 because the motion itself was not at all complex, covering a discreet area of law, i.e. striking a statement of claim, primarily in light of prior ruling considered by the Court to be on point. Further, it is not possible to determine if the attendance time is being billed for both Mr. Leising and Ms. Mitchell. Only one counsel"s time for attendance can be counted in the absence of a court order. Pratt v Meredith, supra., at para. 7 .
[33] The defendant"s position:
Under this heading, Column III allows for a total of between 3 and 7 units for preparation per contested motion or if expressed in monetary terms, between $300 to $700 per motion. As well, the tariff allows for between 1 and 3 units per hour of appearance or between $100 - $300 per hour for appearance per hour per motion. I have based my appearance time on the $300 amount, as I am a senior litigator having been called to the bar in 1979. As the plaintiff has pointed out, there were five motions brought in this matter, all of which were contested, and all of which the defendant succeeded on completely. Nothing precludes the defendant from recovering its costs for each motion since costs were not addressed at the time by the presiding judge for four motions and costs ordered in the cause on the fifth. While Rule 401 does allow for Motions to be the subject of individual cost orders, the Rule does not preclude recovery for the costs of such motions as part of the costs of the action where no discrete order was made at the time. On a unit basis, the amounts claimed are as follows:
a) Scheduling Motions May 23, and September 4. Both of these involved in person appearances by me of approximately one hour. As well each of these involved reviews of the file and consultation with the client and potential witnesses. Based on 3 units for preparation each and 3 units for appearance (1hr x $300) the total claim is $1200.
b) Defendant"s Motion to Strike. As the materials filed by the parties clearly indicate, this was a complex motion requiring extensive research, the filing of factums and books of authorities and oral argument of approximately 3 hours in total. The issue was of sufficient complexity that judgment was reserved for a considerable period of time. Based on 7 units of preparation time and 3 units for 3 hrs. appearance the total claim is $1600.
c) July 17 Motion to Adjourn. This was a contested motion dealt with in writing. It required the preparation of a motion, a record and an affidavit. Seven units of preparation time are claimed and one hour or appearance to prepare the written submission in lieu of appearance for a total of $1000.
d) March 6, 1998 Teleconference. This commenced as a contested motion with the plaintiff at first pushing for an immediate trial date and the defendant taking the position that the plaintiff"s detention status should be determined first. By the time the motion was heard, the plaintiff"s detention status had been determined and the plaintiff was no longer pressing for an early trial date. Approximately 35 minutes were spend on the teleconference and a conference with plaintiff"s counsel. Seven units of preparation time and one hour appearance time is claimed for a total of $1000.
e) March15, 1999 Motion in Writing. This was also a contested motion with the plaintiff, having done nothing for one year now attempting to schedule the trial. A motion record, affidavit and full file history needed to be prepared along with factum. Seven units of preparation time are claimed and one hour or appearance to prepare the written submission in lieu of appearance for a total of $1000.
This accounts for my total claim of $5, 800. Ms. Mitchell"s claim is based on the time spent conducting legal research in relation to these motions and Ms. Erramuspe"s time claim is based on the preparation of her affidavit on the March 15, 1999 motion for a total of $12, 670.
[34] The Plaintiff"s reply submission:
The Defendant is just plainly wrong in asserting a right to collect costs for the motions where costs were not ordered in the cause or in any event. AIC Ltd. v Infinity Investment Counsel Ltd., [1998] F.C.J. No. 904; Veselinovic v M.N.R., [2000] F.C.J. No. 104. The Defendant"s remedy is to go back to the Court and ask for costs in respect of these motions , as costs were not ordered on any but one of the motions.
i. Scheduling Motions: Costs were not awarded. It is not clear from the court record what happened to the Defendant"s motion to adjourn - it appears it was ignored. The Plaintiff"s motion to schedule ultimately resulted in a schedule being set. The Defendant can hardly claim success in respect of either of these motions, as she asserts.
The claim by the Defendant that the motions involved consultations with the client and potential witnesses appears exaggerated: the motions were: by the Plaintiff to set a schedule for the taking of further steps and, by the Defendant to defer setting a schedule. It is hard to understand what potential witnesses would need to appear on these motions; motions judges don"t even hear live witnesses.
ii. Strike Motion: Costs were awarded on this motion. The Plaintiff has already made submissions in respect of this, but adds that the Defendant"s submission that the length of time it took the Court to render a decision reflects on the complexity of the issues is misplaced. It could have been that the Court was occupied with other proceedings and in any event, Mr. Justice Jerome often took a long time to render his decisions in the normal course.
iii. Motion to Adjourn: No costs were awarded by the Court. This was an adjournment motion by the Defendant because the Defendant wanted to wait until the designated judge decided the reasonableness of the security certificate. It was hardly time consuming or complex and involved no complex legal issues.
iv. March, 1998 Teleconference: The Defendant is claiming $1000 for what was essentially a letter to the Court asking that the trial be rescheduled, a simple reply, and a teleconference discussion. The Defendant is grossly exaggerating this proceeding. There was nothing to prepare for this teleconference.
v. March, 1999 Motion to Set Date: As with the earlier motions to set a date this was not legally complex. It was a matter of arguing about whether a trial date should be rescheduled, which the Defendant resisted. While the Defendant did file a reply affidavit and very brief submissions, the setting out of the chronology had been done before in prior interlocutory proceedings.
The Defendant appears to be maintaining the claim for second counsel and for the law clerk. These costs are not covered by the Tariff.
[35] The motions which resulted in orders or directions dated February 20/97, May 27/97, August 8/97, March 26/98 and April 26/99 are all silent as to costs and consequently there is no fee entitlement for these items. In reaching this conclusion, I adopt the words of Assessment Officer Stinson in Gemby v. Her Majesty the Queen in Right of Canada et al Court File No. T-1238-98 wherein he states:
The Orders for which items 4 and 5 are claimed were both silent on costs. The discretion described in Rule 400(1) must be a visible allowance by way of an order or judgment. This being absent here, there is no fee entitlement for items 4 and 5.
[36] As well in Veselinovic v. Canada supra, wherein he states:
There are three claims under item B5 for preparation for a contested motion. Two of these, for an extension of time to institute an appeal and for security for costs, resulted in Orders which were silent as to costs. Assessment Officers do not exercise Rule 400(1) authority. That authority is exercised by the Court as part of the disposition of a particular proceeding and must be visible. Therefore, I remove these two items.
[37] With regards to the motion to strike, I have reviewed the Court record and have determined that the hearing of the defendant"s motion to strike took place before the then Associate Chief Justice on the 9th of September 1996. I have also determined that on the 9th of September 1996, there was a second motion before his Lordship, a motion on behalf of the plaintiff for directions. Furthermore, the Court record indicates that the hearing of these matters commenced at 3:25 p.m. and concluded at 4:00 p.m., at which time the Court took the decision on the motion to strike under advisement. The Court record also reveals that the material filed in support of the Defendant"s motion to strike consisted of a two page memorandum of fact and law.
[38] As set out above, the defendant"s position is that this was a complex motion requiring extensive research and that its issue was of sufficient complexity resulting in judgment being reserved for a considerable period of time. The Defendant seeks 7 units for preparation and 3 hours at 3 units per hour for appearance.
[39] Having reviewed the record and having read the Reasons of the Court for its order on the motion to strike, I am not convinced that this was a complex motion requiring extensive research. Furthermore, given my knowledge of the Court"s workload at that time, I do not attach any significance to a one month delay by the Associate Chief Justice in delivering his decision on this motion. In the absence of supporting evidence, I am of the view that the research to develop the two page memorandum of fact and law by the defendant cannot be characterized as extensive research. I will allow 3 units for preparation and one hour multiplied by one unit per hour for appearance.
[40] Items 10, 11, 12, and 13. Pre trial and Pre Hearing Procedures:
The plaintiff"s response submissions on this item are as follows:
Services Rendered in Respect of Trial: Mr. Leising has claimed 8 hours. Ms. Erramuspe, the law clerk has claimed 4 hours. Column III of Tariff B permits 2-5 units for trial preparation, including correspondence, preparation of witnesses, issuance of subpoenas and other non particularized services. This can be billed even if the trial does not proceed. Preparation for each day of court is fixed at 2-3 units.
The billing of time for trial preparation is premature. There was no trial date scheduled and the matter had not proceeded far enough along to consider that time would be spent in preparing for the trial. There should be no units awarded under this category, as the time spent is under other categories, eg. preparation of materials. It is recognized that the Tariff item contemplates that they can be considered even when a matter does not proceed to trial, but this is more in the nature of actually preparing for trial and having the case settle at the last minute, after the solicitor has prepared to argue. This did not occur here because Mr. Suresh"s discovery was not completed and the Defendant never submitted a Memorandum of Fact and Law which the Court had required before the action could be set down for trial.
[41] The defendant"s position is:
This matter was twice scheduled to proceed on fixed trial dates that had to be adjourned because, on one occasion the plaintiff had not completed the required steps in accordance with an order from Mr. Justice Jerome and on one occasion when the plaintiff had not completed another proceeding before Mr. Justice Teitlebaum. Because the case was twice scheduled on fixed dates, substantial trial preparation had been completed on each occasion including drafting memoranda of law, attending at scheduling conferences, interviewing witnesses and preparing expert reports. Seventeen units claimed for a total of $1700.
[42] The plaintiff"s reply is:
Mr. Leising is distorting the past when he claims that it is the Plaintiff"s failure to complete steps which let to the two fixed trial dates being adjourned. As noted there never was a May, 1997 trial date scheduled. The September, 1997 trial date was adjourned on the Defendant"s request because the Defendant (and only the Defendant) wanted to wait for the Designated Judge to complete the reasonableness review of the security certificate.
Mr. Leising further exaggerates when he claims extensive time was spent drafting a memorandum of law, because although the Defendant was scheduled to file a factum by August 30, 1997, it was never filed. The Defendant also appears to be claiming time spent on motions which he is already claiming above: this is usually considered to be double billing.
[43] As set out above, the plaintiff"s position is that the billing for trial preparation is premature in that there was no trial date scheduled and the matter did not proceed far enough along to consider that time would be spent in preparing for the trial.
[44] The defendant"s position is that because the case was twice scheduled for trial on fixed dates, substantial trial preparation had been required on each occasion.
[45] The plaintiff"s submission in reply contends that there was one trial date fixed and that date was adjourned at the defendant"s request because the defendant wanted to wait for the Designated Judge to complete the reasonableness review of the security certificate. As well, the plaintiff argued that the time identified as being spent on preparation for trial is exaggerated and that the defendant is also including time spent on motions, which has already been claimed earlier in the Bill. She submits that this is considered as double billing.
[46] The record reveals that, on the 20th of February 1997, an order issued directing a schedule for the serving and filing of affidavits by the parties; completion of cross-examinations; filing and serving facta and setting a trial date of Monday the 22nd of September, 1992 at 9:00 a.m. in Toronto.
[47] The Court record further reveals that, by letter to the Registry dated June 30th, 1997, counsel for the plaintiff requested that the trial of this action take place at the provincial Courthouse due to the fact the plaintiff was still under detention and facilities at the provincial Courthouse were more conducive to his attending the Court sitting. In the first paragraph of the letter, counsel for the plaintiff advised as follows:
"The above mentioned plaintiff has an action pending in Federal Court which is scheduled to be heard in September, 1997 for a week. The action is perfected to the extent that affidavits have been filed and cross examinations completed and the Plaintiff"s factum is being filed today pursuant to the Court"s directions."
[48] I note that heading D, Pre-Trial and Pre-Hearing procedures of the Tariff encompasses:
| Item 10 - Preparation for Conference etc: |
Item 11 - Attendance at Conference, per hour,
Item 12 - Notice to admit facts on admissions of fact etc.
| (a) preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this tariff and |
| (b) preparation for trial or hearing per day in Court after the first day. |
| [49] Under this heading, the defendant"s Bill of Costs does not distinguish the amounts being claimed between items 10, 11, 12 and 13, but merely sets out the number of hours spent and the hourly rate for two counsel and a law clerk. In his submissions, counsel for the defendant claims a total of seventeen units under this heading. No details have been provided with respect to what number of units are being claimed under each item. As well, the one paragraph of the defendants submissions on this heading does not break down the services or activities undertaken. |
| [50] The plaintiff"s argument that this matter was never set down for trial is clearly wrong. Through her own correspondence to the Registry, the plaintiff sets out that a trial date had been set and the action perfected to the point of filing plaintiff"s factum . |
| [51] While it is very difficult to discern from the Bill of Costs or the defendant"s submission, what number of units are being claimed under which item, I am of the view that, having regard to the fact that a trial date had been set, some time and effort was expended by the defendant"s counsel in preparation. Consequently, and in the absence of other supporting evidence, I will allow 2 units under item 10, and 3 units under item 13. |
| The defendant claims disbursements of $244.71 paid to Victory Verbatim for transcripts and $82.93 paid to Avonti Paralegal for process serving. The invoices and corresponding cheques for both items are attached to the defendant"s written submissions. |
| [53] The plaintiff"s position on disbursements is as follows: |
| Disbursements: Section 1(4) of Tariff B requires that a claim for disbursements, except for Court fees, be supported by an affidavit or by the solicitor appearing on the assessment. In this case the Defendant has agreed not to have a personal appearance, yet has not filed an affidavit. While, undoubtedly, the Queen has disbursements, she has chosen not to substantiate them and therefore no disbursements should be approved. Pratt v Meredith, supra. at para. 10-11. |
| [54] The defendant"s position is: |
| Receipts for the claimed disbursements are attached. I certify that we paid those expenses. I presume that since this is an appearance in writing an affidavit is not required. If I am incorrect in that understanding, one can be provided. |
| [55] The plaintiff"s reply is: |
| Disbursments: The Defendant has not complied with the rules on proving disbursements and these should not be allowed. The disbursements should have been proven with the original bill, not after the Plaintiff"s submissions have been filed, and even now the Defendant has still not complied with the rules in proving them. |
| [56] Notwithstanding the plaintiff"s position on this point, I am of the view that the two disbursements claimed in this Bill of Costs are reasonable and, having regard to the copy of invoices and cheques attached to the defendant"s written submissions, I accept defendant"s counsel"s certification in writing that these expenses have been paid and allow both items in full. |
| [57] In conclusion, I feel it incumbent on me as an Assessment Officer to comment a little further on the format of the Bill of Costs submitted on this assessment. I am of the view that parties should adhere as closely as possible to the requirements set out in Tariff A 1 (2) because, the objective of serving a copy of the Bill of Costs on the responding party is to apprise that party of what it is you are claiming in relation to the items enumerated in the Tariff. |
| [58] Tariff B is broken down into items of assessable service. Providing the Assessment Officer with a Bill that merely lists the number of hours attributed to each item under the tariff, does not provide the supporting material required to exercise his discretion. It is very helpful, both to the Assessment Officer and to the opposing party, if the Bill of Costs properly identifies the specific item under which the claim is being made, the assessable service performed, the number of units claimed and if relevant, the number of hours claimed. Under items that allow for a number of units on a per hour basis, the number of hours, and evidence to substantiate them should be included. I do not construe section 1 (4) of Tariff B to be mandatory in requiring an affidavit of disbursements in each and every case. In my view a properly drafted affidavit of disbursements is always helpful in proving any disbursements claimed. |
| [59] As a result of the foregoing, I assess the Defendant"s Bill of Costs in the amount of $2,700.00 for fees and $327.64 for disbursements for a total of $3,027.64. A Certificate of Assessment will issue accordingly. |
Assessment Officer
Toronto, Ontario
July 6, 2000
FEDERAL COURT OF CANADA
Date: 20000706
Docket: IMM-1390-96
BETWEEN:
Plaintiff
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Defendant
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: IMM-1390-96
In the matter of an action for declaration between Manickavasagam Suresh and Her Majesty the Queen, pursuant to section 17 of the Federal Court Act:
AND IN THE MATTER OF the detention of Manickavasagam Suresh;
AND IN THE MATTER OF section 52 (1) of the Constitution Act, section 2, 7, 9, 15 an 24(1) of the Canadian Charter of Rights and Freedoms, 1982
AND IN THE MATTER OF section 1 and 2 of the Canadian Bill of Rights, R.S.C. 1985 appendix 111.
MANICKAVASAGAM SURESH
Plaintiff
- and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
DATE OF ASSESSMENT: In writing
PLACE OF ASSESSMENT: Toronto, Ontario
| REASONS BY: P. Pace, Assessment Officer |
DATE OF REASONS: juillet 18, 2000
APPEARANCES:
| Barbara Jackman for the Plaintiff |
| Jim W. Leising for the Defendant |
SOLICITORS OF RECORD:
Barbara Jackman
Jackman, Waldman & Associates
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P IL3 for the Plaintiff
Jim W. Leising
Department of Justice
the Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6 for the Defendant
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