Date: 19990210
Docket: T-751-85
BETWEEN:
BRYAN ROLSTON LATHAM
Plaintiff
- and -
HER MAJESTY THE QUEEN
and
THE NATIONAL PAROLE BOARD
Defendants
TAXATION OF COSTS - REASONS
G.M. Smith,
Assessment Officer
[1] This is an assessment on a party-and-party basis of the Bill of Costs filed by the defendant Her Majesty the Queen on October 28, 1998. Counsel for the defendants requested that this assessment proceed on the basis of written representations, without the personal appearance of the parties.
[2] By Order dated July 31, 1996 the plaintiff's Statement of Claim was struck and costs awarded in favour of Her Majesty the Queen. The plaintiff launched an appeal against that Order on September 27, 1996. The appeal remains outstanding.
[3] The plaintiff has objected to the Bill of Costs on several grounds, one of which was that he was not given sufficient time to respond. The latter point has been fully satisfied in my view given the considerable additional time provided to Mr. Latham over the course of this assessment. The remaining objections raised by Mr. Latham are that the assessment should not proceed while he is seeking to retain legal counsel on his appeal, the assessment should await disposition of the outstanding appeal and Mr. Latham is an inmate without resources to pay costs.
[4] Counsel for the Crown responded that there is no basis for the plaintiff not honouring this Court's award of costs pending determination of the appeal, which was filed in 1996. Counsel further represented that the requirement to pay costs has no bearing on the plaintiff's retaining a lawyer to represent him in his appeal, and lastly, an individual's income has no bearing on the requirement to pay costs.
[5] I note that the plaintiff has been represented by legal counsel throughout these proceedings. On November 24, 1998, however, the plaintiff signed a Notice, which was filed with the Court on December 24, 1998, of his intention to represent himself in this case.
[6] In view of the plaintiff's Notice, I find it difficult to now appreciate his claim that this assessment in the Trial Division should await retention of legal counsel, especially in view of the extended period of time that has elapsed since Mr. Latham filed, on his own behald, his Notice of Appeal on September 27, 1996. As to the plaintiff's argument that the assessment should await determination of the appeal, I note further that the plaintiff has neither obtained, nor applied for, a stay of these proceedings. A valid award of costs therefore remains in effect.
[7] And as for the argument of the plaintiff's inability to pay costs, this also is unfortunately irrelevant. Mr. Latham's impecuniosity as an inmate must surely have been evident to the Court when it allowed the defendant's motion to strike this action and awarded costs, nevertheless, to the defendant. I am without authority to disregard or vary that award in any way on an assessment.
[8] On reviewing the Bill of Costs filed by the Crown, I am prepared to allow the 5 units claimed under item 2 for preparation of a Defence. I will allow only once the claim of 4 units for preparation and filing of a contested motion (under item 5). Only one motion was filed by the defendants, although it may have been amended, and the defendants cannot recover costs under this item for preparation of the opposing party's motion. The claim of an additional 4 units under item 4 for preparation and filing of an uncontested motion is also refused, again for the reason that only one motion was filed by the defendants.
[9] Appearance at the hearing of the defendants' motion will also be allowed as claimed for 3 units at a duration of 1 hour. I will allow as well the claims of 1 unit for services after judgment and 2 units for the assessment. The claim for 1 additional unit under item 27 for other services will be refused as none have been particularized by the defendants nor justified.
[10] I should add another note in response to an additional point raised by the plaintiff to the effect that this assessment should proceed under the Tariff in effect preceding the current Federal Court Rules, 1998. The items which I have assessed remain unchanged from the predecessor Tariff. The plaintiff is therefore not prejudiced either way.
[11] Mr. Latham also asked that I sanction counsel for the defendants for alleged misrepresentations and that I declare the plaintiff as indigent. As to the former, this is not the proper forum for lodging a complaint against legal counsel, and as to the latter, I am again without authority. The plaintiff is at liberty, however, to move the Court (by notice of motion) as he sees fit and as the Rules of this Court provide.
[12] No disbursements having been claimed by the defendant, the Crown's Bill of Costs is assessed in the total amount of $1,500.00. A certificate of Assessment will issue accordingly.
Sgd. (Gregory M. Smith)
Gregory M. Smith
Assessment Officer
Ottawa, Ontario
February 10, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: T-751-85
BRYAN ROLSTON LATHAM
Plaintiff
- and -
HER MAJESTY THE QUEEN
and
THE NATIONAL PAROLE BOARD
Defendants
ASSESSMENTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
- REASONS BY G.M. SMITH, ASSESSMENT OFFICER
DATE OF REASONS: February 10, 1999
APPEARANCES:
Bryan Rolston Latham for himself
R. Jeff Anderson for the Defendants
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario for the Defendants
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