Date: 20001005
Docket: T-1113-97
BETWEEN:
ALAIN CHARRON
Applicant
- and -
MINISTRY OF TRANSPORT
Respondent
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
[1] This application was dismissed with costs on June 23, 1998. Mr. René Leblanc, the solicitor for the Respondent, filed a bill of costs on July 24, 2000 with the request it be assessed without the personal appearance of parties.
[2] Written submissions were received from Mr. Patrick Floyd on September 10, 2000 on behalf of the applicant even though Mr. Charron had not complied with the provisions of Rule 124 (b) which requires the filing and serving a Notice of Appointment of a solicitor. In the circumstances Mr. Floyd's submissions could technically be disregarded. However, I am deciding to follow the example set by Mr. Justice Hugessen, who had in an earlier Order, dismissed Mr. Floyd's Motion for leave to intervene on behalf of Mr. Charron but later allowed him to assist the applicant at the final hearing. I will therefore give due consideration to Mr. Floyd's representations. Upon the receipt of the latter's submissions the respondent requested a one (1) week extension to respond; I allowed the extension and filed the reply on September 22, 2000.
[3] Mr. Floyd's first objection challenges the authority to assess costs for applications filed prior to the coming into force of the new Federal Court (1998) Rules. His arguments are quoted below:
"As per Federal Court Rules 1998, the cases and rules for costs for judicial review, other than for special reasons, only came into effect on April 25, 1998. As such, prior to that date, there was a ban to costs (Rule 1618). In addition, costs were not pleaded prior to the hearing in 1999, nor were special reason's pleaded or given by the Court. The only issue of costs was orally in response to the judge's prompting. Since a rule change can not apply retroactively, and no special reasons were given the only interpretation to the judge's order is for costs after the Federal Court Rules 1998 came into effect. As such, all costs prior to April 25, 1998, including the costs of the first motion should be struck on this basis".
[4] On behalf of the respondent Mrs. Lyne Lasalle contends that the appropriate authority to assess the complete bill of costs is supported by transitional Rule 501(1) which reads:
"Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules".
[5] I agree with the respondent's position on that issue. Under the provisions of Rule 400 (1) the Court has full discretionary power over the amount and allocation of costs. In the absence of specific Direction from the Court pursuant to Rules 400 (5) or (6) the assessment officer has, in my view, authority to assess costs under the new Rules in proceedings instituted prior to April 25, 1998 if the Order for costs issues after that date. Moreover, Mr. Justice Rothstein clarified this issue in Reasons for Judgment rendered on June 10, 1998 in the case of AIC Limited and Infinity Investment Counsel Ltd. et al (Court file number T-1712-97). He wrote:
"Rule 501(1) provides that prima facie, the new Rules should apply to the award of costs in proceedings commenced before the new Rules came into force but in which the award of costs takes place after the coming into force of the new Rules. Of course, Rule501(1) should be interpreted not to affect rights accrued or accruing when the former Federal Court Rules ceased to have effect. However, there were no rights accrued or liabilities incurred with respect to costs of the plaintiff's motion prior to the old Rules ceasing to have effect. Such rights or liabilities could not arise until the Court dealt with the question of costs, which in this case was after the new Rules came into effect."
[6] Mr. Floyd objects to costs associated with the preparation and appearance on a motion of the respondent for Directions in August and September 1997. The respondent has wisely withdrawn these two(2) items which could not have been allowed because there was no mention of costs in the Order of the Court. The same reasoning and result apply to costs claimed for respondent's appearance for Mr. Floyd's Motion in June 1998, the Order being silent as to costs.
[7] The single unit claimed under item 25 for services after judgment should not be allowed according to Mr. Floyd. I beg to disagree. This item is routinely granted by assessment officers to cover any likely expenses to be incurred by the party following final disposition of the matter because these services still fall within the process of litigation. Furthermore, these expenses need not be substantiated in any way.
| [8] Mr. Floyd objects to the claim to assess costs under item 26. He argues that: |
"The costs for taxation are at the discretion of the taxation officer and we submit that the attempt of the Minister to claim for costs for motions that the costs were not awarded, costs prior to April 25, 1998, and conduct of the lawyer for the Minister in misleading the Court this item should not be assessed against Mr. Charron". The assessment of costs is an item clearly assessable under the Tariff and will be allowed as asked at 4 units. Consideration is given to the fact the bill of costs was contested and a written response filed.
[9] Having considered the various factors provided at Rule 400 (3) the following items of assessable services will be allowed as submitted in the bill of costs:
i) item (2): 5 units for the preparation of respondent's material;
ii) item 13 (a): 3 units for the preparation for hearing, and
iii) item 14 (a): the sum of 450,00$ for counsel fees at the hearing.
[10] Disbursements in the amounts of 86,35$ for printing costs and 187,45$ to effect the service of documents are allowed. Mr. Floyd argues that the item for GST should be struck because it is not listed in the Tariff. With respect, sales and service taxes are specifically provided for at paragraph 1 (3) (b) of Tariff B. The amount of 122 50$ will therefore be allowed.
[11]The respondent's bill of costs will be assessed and allowed in the amounts of 1 750$ for services and 396 30$ for disbursements inclusive of the GST. A certificate of assessment will issue in the amount of 2 146,30$.
Halifax, Nova Scotia
October 5, 2000 François Pilon
Assessment Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
Docket: T-1113-97
ALAIN CHARRON
-and-
THE MINISTRY OF TRANSPORT
Respondent
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: François Pilon, Assessment Officer
DATE OF REASONS: October 5, 2000
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent
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