Date: 20071220
Docket: T-1302-05
Citation: 2007 FC 1353
BETWEEN:
RICHARD
CHIU
Applicant
and
NATIONAL
PAROLE BOARD
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
These
reasons, filed in this court file (the T-1302-05 file) with a copy also filed
in Federal Court file T-1972-05 (the T-1972-05 file), apply in each matter
(having the identical style of cause) accordingly. In July 2005, a clerk with
the Appeal Division of the National Parole Board wrote a letter to the Applicant's
solicitor providing an update on the status of his pending appeal concerning
revocation of his parole. The Respondent brought a summary motion for dismissal
of the T-1302-05 file, an application for judicial review of said letter, on
the ground that said letter was not a decision subject to judicial review. In
November 2005, the Court, in finding that said application for judicial review was
bereft of any possibility of success, agreed and dismissed it with costs
throughout to the Respondent. The T-1972-05 file, an application for judicial
review of a decision of the Appeal Division of the Respondent upholding the
decision to revoke the Applicant's full parole, was discontinued in March 2006.
The Respondent presented a bill of costs in each matter for assessment (Rule
402 providing for costs forthwith being the relevant authority for the
T-1972-05 file). I issued a timetable for written disposition of their
assessment.
[2]
The
record indicates that, in February 2006, counsel for the Respondent sent to
opposing counsel a bill of costs for the T-1302-05 file in the amount of
$2,785.36 (consisting of $1,800.00 for counsel fees + $985.36 for
disbursements) and requested either consent thereto or suggested adjustments,
failing which an assessment of costs would be scheduled. In April 2006, counsel
for the Applicant suggested that it would be prudent to address costs for the
T-1972-05 file at the same time and asked for their details. Two days later counsel
for the Respondent in the T-1972-05 file provided the relevant bill of costs
(marked "draft for discussion only") in the amount of $1,580.50 +
$620.50 for disbursements) and asserted that if consent was forthcoming,
proposals for adjustments would be considered and the item 26 fee (assessment
of costs) would be withdrawn. There was no further correspondence on costs
between counsel until the Respondent, in February 2007, filed for assessment
thereof a bill of costs for the T-1302-05 file in the amount of $3,025.36
(consisting of $2,040.00 for counsel fees + $985.36 for disbursements) and a
bill of costs for the T-1972-05 file in the amount of $2,420.50 (consisting of
$1,800 for counsel fees + $620.50 for disbursements).
[3]
The
reply materials filed by counsel for the Applicant asserted that her client had
advised her that he intended to take over the matter of costs. However, as he
had not yet filed the requisite notice to remove her from the record, she filed
them to assist her client and as a friend to the Court. Said reply materials
set out her summary of events; asserted that the T-1972-05 file was
discontinued after a Supreme Court of Canada decision held that superior courts
of the provinces had jurisdiction to hear habeas corpus applications;
asserted that the British Columbia Court of Appeal subsequently, further to a habeas
corpus application, released the Applicant on full parole and found that
the Respondent's miscalculation of dates had interfered with his rights;
asserted that the respective arguments for the British Columbia Court of Appeal
matter and the two Federal Court matters were essentially identical and that no
costs were awarded in the former matter because it was a criminal proceeding;
argued further to Re Ange [1970] 5 C.C.C. 371 (Ont. Ct. Appeal) that
costs should not be awarded here because matters involving deprivation of
liberty, as here, are criminal in nature; asserted that financial reasons
precluded an appeal of the award of costs in the T-1302-05 file and requested
that no costs be awarded because the Respondent was aware of the difficulties
for the incarcerated Applicant in getting instructions to his solicitor, as
well as proceeding to an assessment of costs without notice despite an
awareness of the Applicant's willingness to negotiate costs and intent to
represent himself.
[4]
In
rebuttal for both matters, counsel for the Respondent added to the record the
correspondence between opposing counsel subsequent to the filing for assessment
of the bills of costs in February 2007. That correspondence indicated that
the Respondent would consider adjustments and that the Applicant had instructed
his solicitor that he did not dispute the disbursements. It indicated that the
Respondent, in response to the Applicant's request that some counsel fee items
be reduced because of the similarity of the two matters, reduced some items and
then requested consent to the adjusted amounts. It indicated that counsel for
the Applicant subsequently requested that costs be forgiven because of the
illegal actions of the Respondent, for which the Applicant may sue for damages
including recovery of the costs in issue here, and asserted that the
Applicant, recently released from custody, was arranging for payment of the
costs. It indicated that counsel for the Respondent advised opposing counsel that
she would ascertain whether her client might forego collection of costs; that
it is appropriate to proceed to a formal assessment of costs in the absence of
a specific settlement offer regardless of an expressed intent to pay; that there
is no apparent jurisprudence addressing costs relative to relief outside the
Federal Court's jurisdiction, i.e. habeas corpus; that if there is
jurisprudence precluding the Federal Court from awarding costs in matters of certiorari
and mandamus relating to prisoners, it is curious that the trial judge
awarded costs in the T-1302-05 file and that there exists a statutory bar to
actions in negligence against members of the Respondent in the exercise of
their duties.
[5]
Counsel
for the Respondent asserted that the Applicant's reply materials do not dispute
counsel fees or disbursements and instead indirectly operate as an appeal of
the award of costs in the T-1302-05 file and a request that there be no
assessment or collection of costs. As such, they are irrelevant for an
assessment of costs: see Astrazeneca AB v. Novopharm, [2004] F.C.J. No.
1196 (A.O.) addressing Rules 2 and 405 relative to an assessment officer's
jurisdiction, As well, the Federal Courts Act, s. 27(1), vests
jurisdiction for such appeals in the Federal Court of Appeal only. That
the Applicant did not appeal the award of costs is irrelevant for this
assessment of costs. The reference to Re Ange above is misplaced in
an assessment of costs as it should have been raised before the trial judge,
before final judgment, in connection with issues of entitlement to costs. An assessment
officer has no jurisdiction to interfere with the Court's finding here on
entitlement further to Rule 400(1). In any event, Re Ange addressed
issues of habeas corpus, which were absent here. A similar rationale applies
to the T-1972-05 file, for which Rules 402 and 412 establish the Respondent's
entitlement to costs further to discontinuance. In particular, the jurisdiction
attributed to superior courts of the provinces is irrelevant for assessment of
costs further to said Rules.
[6]
Counsel
for the Respondent argued that the record confirms ample notice of its desire
for resolution of costs by consent, adjustments or assessment. The
rebuttal materials present an amended bill of costs for the T-1302-05 file
in the amount of $2,545.36 (consisting of $1,560.00 for counsel fees + $985.36
for disbursements) and an amended bill of costs for the T-1972-05 file in the
amount of $1,920.50 (consisting of $1,320.00 + $620.50 for disbursements). Any
issues of collection of costs are independent of issues of assessment of costs
and are irrelevant for and cannot preclude the latter from proceeding to
completion.
Assessment
[7]
The
Respondent is correct: I do not have jurisdiction to sit in appeal of or
otherwise interfere with the Court's finding on costs. As well, I do not
have the authority to make the order contemplated under Rule 402 to vary or
vacate the Respondent's entitlement to costs further to discontinuance in the
T-1972-05 file. My role is to establish a dollar figure for an award of costs as
a function of reasonable necessity, which sometimes requires that I rule on
issues of law flowing from assessments. Those issues include matters of
entitlement, i.e. orders silent on costs, but that does not permit me to refuse
to assess costs in the face of materials asserting that the Court incorrectly
awarded costs in the first instance. The Respondent is also correct that
financial hardship and issues of collection of costs are irrelevant: see Latham
v. Canada, [2007] F.C.J. No. 650 (A.O.) at para. [8].
[8]
The
record refers to the challenges for a recently released inmate to get his life
in order. I can understand that resolution of these costs might be of
secondary importance both now, and while still incarcerated when gaining his
freedom would likely have been paramount. On the other hand, I find that he had
ample notice (over one year) that the Respondent would seek costs and of the
extent of the potential amounts for each matter. His inaction, i.e. not filing
a notice of intent to represent himself, put his solicitor of record in an
awkward position. She filed a notice of motion in each matter - for which the
Respondent took no position - for an order to remove herself from the record.
Her supporting affidavits and written representations indicated that her client
had informed her office that he would take control of these matters; that she
had forwarded the Respondent's materials to him with a suggestion that he
contact the Registry; that she had prepared a reply affidavit and submissions
for costs for his use further to his assertion to her that he intended to reply
further to my timetable; that he had called her on April 17, 2007, to say that
he would be delayed, was aware of the April 18, 2007 deadline for his reply
materials and would meet it; that he did not come to her office on April 17,
2007; that she had attempted unsuccessfully several ways on April 18,
2007, to contact him and out of an abundance of caution had filed the reply
materials for costs on his behalf; that she forwarded a copy of said
materials to him on April 25, 2007, and that he had not contacted her office
since April 17, 2007, despite her ongoing attempts to contact him. The Court
issued an order in both matters removing her from the record.
[9]
Generally,
the authority of solicitors to act by filing materials and appearing in Court
flows from and is restricted to instructions from their clients. That principle
is tempered by certain professional obligations to the Court itself flowing
from the Federal Courts Act, s. 11(3), making them officers of the
Court. As such, I think that the Applicant's former solicitor of record
discharged her s. 11(3) obligation properly by leading the reply materials
after notification from her client that he intended to represent himself.
Notwithstanding that the record confirms that they were prepared in
consultation with the Applicant, I could not be certain that they indeed
accurately represented his current position. Those reply materials resulted in
reasonable efforts by the Respondent to accommodate to the extent that there is
very little room left to further reduce counsel fees. If I permitted the
Applicant to adduce further or replacement materials possibly abdicating the
position represented by the reply materials currently in place, that would put
the Respondent to further expense in circumstances by which further reductions
might be minimal. As well the concessions by the Respondent to date were not,
in my view, an admission of wrong or excessive claims but simply a reasonable
attempt at efficient resolution of issues of costs which would, among other
things, preclude possible further costs for an appeal. If I did permit the
Applicant to reopen the process by adducing further materials, that would
penalize the Respondent by way of costs for a possibly fruitless exercise, and
I therefore would permit the Respondent to further amend the bills of costs by
reverting to higher counsel fee claims as it sees fit as well as adding the
disbursements, not presently in the amended bills of costs, for preparation and
service of the costs materials all to the detriment of the reductions achieved
to date on behalf of the Applicant by his former solicitor of record.
[10]
My
view, expressed further to my approach in Carlile v. Canada (M.N.R.)
(1997), 97 D.T.C. 5284 (T.O.) and the sentiment of Lord Justice Russell in
Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that
assessment of costs is "rough justice, in the sense of being compounded of
much sensible approximation", is that discretion may be applied to sort
out a reasonable result for costs equitable for both sides. I think that my
view is reinforced by the editorial comments (see The Honourable James J.
Carthy, W.A. Derry Millar & Jeffrey G. Gowan, Ontario Annual Practice
2005-2006 (Aurora, Ont.: Canada Law Book, 2005)) for Rules 57 and 58 to the
effect that an assessment of costs is more of an art form than an application
of rules and principles as a function of the general weight and feel of
the file and issues, and of the judgment and experience of the assessment
officer faced with the difficult task of balancing the effect of what could be
several subjective and objective factors.
[11]
I
think that the most that the Applicant might have achieved by getting my
permission to adduce further reply materials would have been to challenge the Respondent's
item 5 fee claim for 3 units ($120 per unit) to oppose the Applicant's motion
in the T-1972-05 file to extend time for filing of the record plus the
associated disbursements of $249.14 and $47.62 for preparation and service
respectively of the motion record. In fact, the T-1972-05 file was discontinued
before the Court could rule on the motion and therefore there was no
interlocutory exercise of the Court's discretion under Rule 400(1) permitting
motion costs. The Respondent did not, but could reasonably have done so, argue
that the filing of the discontinuance shortly after the filing of the
Applicant's motion to extend time constituted an abandonment of a motion
contemplated by Rule 402 in turn creating an entitlement by the responding
party to its associated and real interlocutory costs. In my opinion, it would
be difficult for a lay litigant to overcome that position. Considering all
these circumstances, I thought it inevitable that waiting for the Applicant to
come forward on his own - and he had not made a single overture to the Registry
from April 17, 2007 to the date of removal of his solicitor of record - to
reopen the process for submissions and then permitting him to adduce further
materials which might abandon his current position on the record would result
in higher, and not lower, costs payable by him.
[12]
However,
given repeated indications in the record of his intent to actively address
these matters of costs, I issued directions giving notice to him that he had
had sufficient time (several months) to consider his respective positions
on the assessments of costs and to arrange, if necessary, for new counsel and
that he would have one month to file any additional reply materials. I noted
for him that an Assessment Officer does not have jurisdiction to sit in appeal
of or otherwise interfere with the Court's exercise of discretion
under Rule 400(1) concerning entitlement to costs as used in the T-1302-05 file
to award costs to the Respondent, nor to make the order contemplated under
Rule 402 to vary or vacate the Respondent's entitlement to costs further to the
discontinuance in the T-1972-05 file. The Respondent did not file additional
materials.
[13]
The
amended bills of costs of the Respondent are assessed and allowed as presented
at $2,545.36 and $1,920.50 for the T-1302-05 file and the T-1972-05 file
respectively.
“Charles
E. Stinson”
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