Armstrong v. Canada (Attorney General), 2010 FC 1189

Date: 20101125

Docket: T-1026-09

Citation: 2010 FC 1189

BETWEEN:

            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]               The Court allowed with costs this application for judicial review of a decision of the Veterans Review and Appeal Board which had refused to reopen its earlier decision affirming the decision of an Entitlement Appeal Panel relating to the efforts of the Applicant, a member of the RCMP, to obtain a disability pension. I issued a timetable for written disposition of the assessment of the Applicant’s bill of costs. The Respondent’s reply submissions objected to only the claims for the maximum values in the available ranges for counsel fees and to travel expenses ($950.16) for the Applicant to personally attend the hearing. I find the uncontested items of costs reasonable in these circumstances and allow them as presented.

[2]               The Applicant’s position is that the complexity and volume of the materials coupled with the importance of this application for judicial review warrant the maximum Tariff amounts claimed for the counsel fees. The attendance of the Applicant at the hearing was essential for instructions and assistance to counsel.

[3]               The Respondent argued that as with many cases, the facts here were particular to the circumstances of the Applicant and the decision turned on the facts. As such, there were no novel legal or Charter precedents set. The record was not voluminous or complex. The Respondent suggested mid-range values for the counsel fees with the exception of fee item 26 (assessment of costs) which should be set towards the low end of the range, i.e. 3 units, given straightforward materials, i.e. the Applicant did not even advance written submissions.

[4]               The Respondent argued that the Applicant was free to personally choose to attend the hearing, but her attendance was not essential given that the requirement for complete records filed well in advance precluded any oral testimony. The costs for an attendance merely to instruct counsel is not recoverable: see Bayliner Marine Corp. v. Doral Boats Ltds. (1987) 11 F.T.R. 192 (F.C.T.D.).

Assessment

[5]               Paragraph 25 of Cockerill v. Fort McMurray First Nation #468, [2010] F.C.J. No. 1246 (A.O.) [Cockerill] sets out my general approach for assessments of costs. I concluded in para. 7 of Starlight v. Canada, [2001] F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the Tariff need not be used as each fee item for the services of counsel is discrete and must be considered in its own circumstances. As well, broad distinctions may be required between an upper versus lower allowance from available ranges.

[6]               I read the respective records of the litigants. I find that counsel for the Applicant having carefully prepared the originating document and record called for in fee item 1, his preparation for hearing under fee item 13(a) would have been more straightforward. I therefore allow 6 units ($130 per unit), not quite the maximum value, for fee item 1, but only a middle range value of 4 units for fee item 13(a). The available range for fee item 14(a) (appearance at hearing) is 2-3 units per hour. I held in para. 27 of Cockerill that if I think that such available choices do not adequately reflect the appropriate indemnification, I can apportion them by, for example, applying 2 units per hour to certain hours and 3 units per hour to the balance of hearing hours. Here, I assess the 6 hours at 3 units and 2 units per hour for 4 hours and 2 hours respectively. The Respondent did not object to an allowance for fee item 15 (written argument requested by the Court). I held in para. 38 of Cockerill that fee item 15 is not intended as additional compensation for work such as for fee item 1. In the circumstances, I allow only the minimum 3 units. I allow fee item 25 (services after judgment) as presented at 1 unit. I allow fee item 26 at 4 units.

[7]               I considered similar circumstances in Pizarro v. Canada (Attorney General), [2010] F.C.J. No. 869 (A.O.), i.e. the attendance by an RCMP officer at the hearing of his judicial review, and disallowed any associated travel costs. I see nothing in the record here to support the allowance of $950.16 to bring the Applicant to the hearing and I therefore disallow it.

[8]               The Applicant’s bill of costs, presented at $9,363.53, is assessed and allowed at $6,957.37.

“Charles E. Stinson”

Vancouver, BC

November 25, 2010

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1026-09

STYLE OF CAUSE:                          LINDA ARMSTRONG v. AGC

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                    CHARLES E. STINSON

DATED:                                                                                 November 25, 2010

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: