Date: 19990504
Docket: T-2019-98
BETWEEN:
EMILE MARGUERITA MARCUS MENNES
on his own behalf and that of all other inmates
across Canada in care and custody of the
Correctional Service of Canada under the
Corrections and Conditional Release Act,
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
on behalf of the Correctional Service of Canada,
the Governor in Council, the Commissioner of
Corrections Ole Ingstrup, Andrew K. McIntosh,
and David Larcombe
Respondents
ASSESSMENT OF COSTS - REASONS
FRANCOIS PILON
Assessment Officer
[1] The Applicant's Notice of Application was dismissed with costs to the Respondent by Order of the Court dated February 3, 1999. The Applicant, Mr. Emile Marguerita Marcus Mennes, is a lay litigant representing himself. The Attorney General of Canada is represented by Ms. Janice Rodgers.
[2] The Respondent filed its Bill of Costs on February 10, 1999 along with a covering letter from counsel requesting that it be assessed in writing without the personal appearance of parties. On February 26, 1999 Mr. Mennes filed a Notice of Appeal from the Order of the Trial Division dismissing his originating document.
[3] The Applicant filed his written representations on April 12, 1999 and the Respondent's submissions were received on April 20, 1999. Mr. Mennes requests that this matter be adjourned sine die pending the hearing of the appeal. Ms. Rodgers points out that the Attorney General has not yet been served with the Notice of Appeal and therefore takes no position in respect to the Applicant's request to adjourn the Assessment of Costs.
[4] In my view the Applicant's request for an adjournment until the appeal is heard should not be granted. Indeed the granting of that request would have the effect to stay proceedings in the Trial Division and to take away the right of the Respondents to recover its costs as ordered by the Court. There are no provisions in the Rules to support Mr. Mennes' request and there was no motion to stay the proceedings pursuant to Section 50 of the Federal Court Act.
[5] Moreover, a body of jurisprudence suggests that stays to proceedings are not automatic upon the filing of the appeal. In Apotex Inc. v. Hoffman-LaRoche Ltd., (1985), 6 C.P.R. (3rd) 117 (Fed. T.D.) the party applying for a stay of proceedings had to establish that the balance of convenience favoured a stay and that irreparable injury would follow if no stay was ordered.
[6] In Porto Seguro Companhia de Seguros Gerais v. Belcan S.A. (1995), 93 F.T.R. 238 (T.D.) the Court granted a stay of the payment of costs pending the disposition of the appeal on the condition that the total award of costs be paid into Court pending the appeal.
[7] In Dableh v. Ont. Hydro (1994), 84 F.T.R. 102, 57 C.P.R. (3rd) 387 (T.D.) the Court refused to stay the execution of an Order for costs pending the appeal even though the Appellant might have to declare bankruptcy.
[8] These cases suggest that costs are recoverable by successful parties in the Trial Division even though an appeal has been filed unless the aggrieved party has obtained an Order to stay proceedings. In the case at bar there are no motions nor Orders for such relief. The assessment of costs will thus proceed.
[9] Counsel Fees - Counsel is claiming 3 units for item 5; this is the minimum in a scale from 3 to 7 units. It is allowed accordingly.
[10] Disbursements - The amount of $224.70 claimed for the service of the Respondents's motion record is reasonable and has been established to my satisfaction.
[11] In conclusion the Respondent's Bill of Costs is assessed in the amount of $524.70. A Certificate of Assessment will issue accordingly.
Assessment Officer
Halifax, NS
May 4, 1999.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Docket: T-2019-98
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Emile Marguerita Marcus Mennes
Applicant
- and -
The Attorney General of Canada
Respondents
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS - REASONS BY: FRANCOIS PILON
ASSESSMENT OFFICER
DATE OF REASONS: May 4, 1999
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada for Respondents
APPEARANCES:
Emile Marguerita Marcus Mennes for himself
Janice Rodgers for the Respondents
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