Date: 20100121
Docket: T-64-08
Citation: 2010 FC 68
BETWEEN:
HENRY NEUGEBAUER
Applicant
and
ANNA M. LABIENIEC
Respondent
ASSESSMENT OF
COSTS - REASONS
Johanne Parent
Assessment Officer
[1]
On
June 25, 2009, Madam Justice Simpson dismissed the application to expunge the
Certificate of Registration of Copyright (Registration No. 1,039,825)
concerning the literary work entitled Gest puch. In her decision, the
Court further ordered that: “The respondent shall have her costs, in the amount
of $3,000.00 for her time plus reasonable disbursements and party and party
costs associated with any counsel retained to assist with this application.” A
timetable for written disposition of the assessment of the respondent’s Bill of
Costs was issued on August 6, 2009 and both parties filed materials in the
prescribed timeframe. Within her submissions, the respondent filed an amended
Bill of Costs which triggered the issuance of additional directions allowing
the parties to file supplementary submissions with regard to the amendment. The
respondent’s further submissions filed October 9, 2009, caused the applicant to
submit a request for an oral hearing of this assessment of costs.
[2]
The
hearing took place on November 18, 2009 with both parties present. In
consideration of the written submissions already on file, the parties were
asked to specifically address the issues raised by the respondent’s further
submissions, namely the admissibility of the reply materials and, in the event
that the material was found admissible, the issues raised in that document.
[3]
At
the hearing, applicant’s counsel argued that the filing of the rebuttal
material on October 9th was an attempt by the respondent to bolster
her case by introducing new material and unanticipated arguments with regards
to counsel and translation services as well as reimbursement of witnesses. Of
specific concern was the characterization in the Court Order of the word
“retained” and the phrase “assist with applications” in the context of third
party assistance. These issues will be looked into further in these reasons. In
counter-argument, the respondent mentioned that her Bill of Costs was prepared
as advised by the Registry of the Courts and that some items might not be in
the right category.
[4]
On
the admissibility of the respondent’s reply materials, I would usually subscribe
to the applicant’s argument that the new material introduced before the
Assessment Officer is not a reply and should have been included in the material
initially filed in support of the Bill of Costs on August 27, 2009. Nevertheless,
I have also taken into consideration that the respondent is a self-represented
litigant and that the applicant’s counsel had an opportunity to review the
material submitted in rebuttal and make arguments during the hearing of the
assessment. In the course of my decision, I have, therefore, taken into
consideration all materials and arguments submitted by both parties.
[5]
In
her Bill of Costs of September 23, 2009, the respondent re-itemized her costs
or assessable services utilizing monetary figures to claim full reimbursement
of her expenses rather than the unit value system established in Tariff B of
the Federal Courts Rules. Considering that the Court’s decision
expressly allowed “party-and-party costs associated with any counsel retained
to assist with this application” and the provision of Rule 407 of the Federal
Courts Rules: “Unless the Court orders otherwise, party-and-party costs
shall be assessed in accordance with Column III of the table of Tariff B”, all
Items claimed by the respondent shall be assessed pursuant to the number of
Units in Column III.
[6]
In
support of this conclusion, I refer to the Court of Appeal decision in W. H.
Brady Co. v. Letraset Canada Ltd., [1991] 2 F.C. 226:
The general proposition that, to be entitled to recover costs, a
litigant must be liable to pay them to his solicitors is based on the principle
that party and party costs are given as an indemnity, as a compensation for the
expense to which a successful litigant has been put by reason of the
litigation. The payment of costs to a party is not to be a gift. It would be
unacceptable to let a party collect costs -- which, for the most part, relate
to professional services -- if the solicitor who has rendered the services is
not legally in a position to claim them from him. The liability required to
satisfy the principle involved is easy to define: it is the legal obligation to
pay for the services rendered to him which a litigant assumes towards his
solicitor and which can be enforced by the solicitor at any time.
For further information on this subject, I
refer parties to the decision of Canada v. Dewar, [1985] F.C.J. No. 538
in which Senior Assessment
Officer Stinson reviews in a very
explicit manner the relationship between party-and-party costs and lay
litigants.
[7]
Throughout
the respondent’s Bill of Costs, claims are made in connection with the Court
hearing that was held on November 26, 2008. The Order of December 8, 2008
adjudicating the matter before the Court that day did not allow costs in favour
of any party. It is well established in law that any
pre-trial Order that is silent as to costs means that no costs have been
awarded to any party (Pelletier v.
Canada, 2006 FCA 418,
Janssen-Ortho Inc. v. Novopharm Ltd., 2006 FC 1333 and Aird v. Country Park Village Properties
(Mainland) Ltd., 2005 FC
1170). The Assessment Officer has no jurisdiction to order costs. For this
reason, I am not in a position to allow costs with regards to any services or
disbursement in relation with this hearing. Consequently, the claims for
counsel preparation, counsel appearance and interpretation/translation services
in relation to the November 26 hearing are all denied.
[8]
In
her Bill of Costs, the respondent claimed $19,694.93 for the services of Mr.
Christopher H. Kozlowski, Barrister and Solicitor under Item 2 of Tariff B
of the Federal Courts Rules. In the respondent’s view, the allowance by the
Court for the services of counsel retained to assist with this application,
encompasses all legal services provided by Mr. Kozlowski, who had been retained
to assist her in understanding the procedures before the Federal Court and
negotiating a settlement before the hearing on November 26, 2008.
[9]
The
applicant’s argument pertains to the interpretation of the expression “retained
to assist” used in Madam Justice Simpson’s Order of June 25, 2009. It is
maintained that counsel was only retained in connection with this application
for a short period of time between December 9, 2008 (filing of counsel’s Notice
of Appearance) and December 16, 2008 (filing of the respondent’s Notice of
Intention to Act In Person). There is no evidence to establish that counsel
provided any services with regard to Tariff B of the Federal Courts Rules
after December 16th.
[10]
In
counter-argument, the respondent admitted that Mr. Kowalski’s services were
terminated on December 16, 2008. However, she submitted that all her materials
were prepared with his help. She suggested that the Court was clear in using
the wording “retained to assist”, and not using wordings like “was retained” or
“has been retained”. She further referred to the definition of the word
“retain” in the Pocket Dictionary of Canadian Law 4th edition: “For
a client to engage a solicitor or counsel to defend or take proceeding, to
advise or act on one’s behalf”.
[11]
I
interpret her argument to be that since the Court did not impose a time limit
in the phrase “retained to assist”, that any assistance counsel provided
throughout the full period of the proceedings are recoverable.
[12]
To
determine the role of Mr. Kozlowski in light of the wording used in the Court
Order, many legal dictionaries were consulted. The word “retain” appears to
mainly refer to the act of engaging the professional services of a barrister,
counsel or solicitor to take or defend proceedings as well as advise a client.
A careful review of Mr. Kozlowski‘s invoices attached to the respondent’s
material filed on August 27, 2009, indicates that counsel was retained by the
respondent on or before November 10, 2008 to review the documentation and
conduct negotiations with respect to potential settlement. From the material,
it appears that the preparation for the hearing held in November came after the
breakdown of settlement negotiations. I, therefore, find that Mr. Kozlowski had
been retained in his capacity as counsel to assist the respondent and provide
advice for more than the specific period covered by his official appearance on
the Court file. However, there is no evidence on file to show that Mr.
Kozlowski assisted the respondent with any of the services covered by Tariff B
including the preparation and filing of her Record and material as per Item 2
of Tariff B and for that reason, I will not allow the claim under Item 2.
[13]
However,
as stated by my colleague in Early Recovered
Resources Inc. v. Gulf Log Salvage Co-Operative Assn., 2001 FCT 1212 in allowing services under Item 27 for settlement
negotiations “the scheme of the Rules is designed to encourage
settlement and any efforts in that area should be treated positively.” Although
service by counsel to negotiate settlement is not covered specifically by
Tariff B, I agree with my colleague that efforts made in that sense should be
compensated for. Two units will be allowed under Item 27.
[14]
Under
Item 12 of Tariff B, the respondent claimed $540.00 for time spent by different
individuals to prepare affidavits. Counsel for the applicant submits that the
costs for witnesses to participate in this matter are not contemplated in the Rules
or in the Court’s Order. Further, Section 3(3) of Tariff A of the Federal
Courts Rules is not relevant to the type of proceeding before the Court in
view of the fact that the evidence in this matter proceeded in writing and that
no witness was called to testify in Court.
[15]
Item
12 refers to counsel’s services provided with regards to the admission of
facts. Although the affidavits prepared were a vital part of this case, there
is no evidence on file that any counsel were involved in assisting the
respondent in preparing such affidavits. The claim under Item 12 will,
therefore, be disallowed. Section 3(3) of Tariff A does not apply to this type
of proceeding as no witnesses attended the proceeding.
[16]
In
her Bill of Costs, the respondent claims $4,310.00 under Items 7 and 27 for
time spent by a third party reading and translating Court materials as well as doing
research. Applicant’s counsel does not contest the right for parties to have
access to interpretation services in Court but argues that the costs ordered by
Madam Justice Simpson do not cover the reimbursement of third-party assistance.
With regard to the translation of documents used in this matter, counsel
submits that with the exception of the respondent’s affidavit and written
submissions, there is no proof that the other affidavits or submissions needed
to be or were translated in light of the Court’s acknowledgement during the
November 26th hearing that the respondent understood the English
language.
[17]
The
respondent maintains that translation services were necessary at all steps of
the case preparation i.e. preparing arguments, finding precedents etc. The
respondent’s basic knowledge of English language necessitated the use of a
translator/interpreter. This necessity is supported by the statement of Madam
Justice Simpson in her decision of June 25, 2009 at paragraph 3: “She speaks
and works in Polish and is fluent only in that language”. She argues that her basic
right of equality before the law guaranteed by “Tribunal Rights” and the Canadian
Charter of Freedoms, allows her the right to third-party service including
the service of an interpreter during Court hearings.
In rebuttal, the applicant clarified that
their submissions “did not support discrimination over linguistic rights”. Nevertheless,
the Rules of the Courts and the Order of this Court shall prevail. Only reasonable
disbursements for interpretation/translation services should be recoverable.
The applicant’s argument is not to deny such right but to determine standards
of reasonableness based on the documents the respondent was required to
prepare.
[18]
The
respondent’s claims for interpretation services made under Items 7 and 27 of
Tariff B are not allowed. Again Tariff B is used to compensate legal costs
incurred by a party on a party-and-party costs basis. In this case, the Court
awarded the respondent, a lay litigant, $3,000 for her time plus
party-and-party costs associated with any counsel retained to assist. The
services of an interpreter or researcher do not fall under Items 7 or 27 as
they are not services of counsel but disbursements.
DISBURSEMENTS
[19]
The
respondent claims disbursements for interpretation services (Polish – English)
required at the hearings held on January 22, 2009. Again the applicant does not
deny the respondent’s right to interpretation services but argues that the
hourly rate charged by the interpreter is excessive given that, the Ontario
Rules of Civil Procedure limits the amount to be paid to an interpreter to
$100 a day subject to increase in the discretion of the assessment officer.
[20]
In
support of her claim, the respondent provided an invoice from Krzysztof
Zarzecki in the amount of $210 ($35 an hour). To note, Mr. Zarzecki was
recognized twice by the Court as translator (Polish – English) in the course of
that file as well as for the hearing of this assessment of costs. From the
evidence on file, the interpretation services claimed were provided and paid by
the respondent. There is no evidence that such service could have been obtained
for a lesser amount. The interpretation services for the January 22 hearing are
allowed in full.
[21]
The
amount of $2,760 is further claimed for the translation from Polish to English
of one hundred and thirty-eight pages. In her submissions, the respondent
mentions that this service was needed for the translation of her affidavit,
statement of fact and all defence material she had originally written in
Polish. After reviewing the pleadings filed by the respondent, the applicant submits
that this claim is excessive as the respondent’s affidavit was fourteen pages
in length and the Memorandum of fact and law, eight pages. The allowable amount
should be reduced to $440.
[22]
Although
no invoices were submitted to support this claim, it is apparent that
translation services were necessary. Considering the applicant agrees that the
respondent has the right to the use of translation services for her affidavit
and memorandum and considering the other documents and correspondence submitted
by the respondent in the course of the proceedings, excluding the motion
material for which no costs were awarded, I allow $800.00 for translation
services.
[23]
The
claims for Notary and courier services are not contested and are allowed. As
for the claims for stationary material, binding and CD burning services, they
are considered reasonable, properly justified and will be allowed as claimed.
[24]
The
respondent claims $300.00 ($0.50 per page) for printing her pleadings, arguing
time pressure as all her materials had to be prepared in a rush. The invoice
attached to the respondent’s supporting material indicates that the printing
was done overnight by Silgraph on December 22, 2008. The applicant does not
dispute the number of photocopies made but argues that the claim is
unreasonable and excessive, indicating that they should not be financially
liable for the last minute work requested. They further mention that a
reasonable price for photocopying is $0.25 per page.
The hearing of this matter was finally
heard on January 22, 2009 after having been adjourned on November 26, 2008 further
to the applicant moving to proceed by default. In her Order adjourning this
matter, the Court states: “The adjournment will be granted because counsel for
the applicant scheduled the hearing as a default proceeding knowing that the
respondent wished to oppose the Application”. Considering that the Order was
signed and served on the parties on December 8, that in the end the respondent
had from November 26, the date of the verbal communication to the parties of
the hearing adjournment, to prepare, file and serve all her materials in
support of her Application, and considering the Christmas recess and necessity
for service on the applicant in a timely manner to prepare for the hearing on
January 22, I am of the opinion that the deadline the respondent imposed on
herself to file and serve her materials was appropriate. The printing fees are,
therefore, allowed as claimed.
[25]
Travel
expenses are claimed by the respondent to travel to Mister Kozlowski’s office,
to accompany an affiant to the Notary office and to travel to the Court for
filing documents and attend trial. With regards to the claim to travel to Mr.
Kozlowski’s office, the applicant submits that there is no evidence supporting
this claim and further “As a party to litigation, the respondent is not
entitled to travel expenses. The respondent is not entitled to claim for travel
expenses related to obtaining legal services.”
[26]
The
travel expenses claimed by the respondent were not substantiated by any
evidence to support their allowance. For that reason, the travel claims will be
denied.
[27]
The
Bill of Costs is allowed for a total amount of $4,729.07.
“Johanne Parent”
Toronto, Ontario
January 21, 2010
Email this Content