Bartkus v. Canada post Corporation, 2009 FC 404

Date: 20090422

Docket: T-93-08

Citation: 2009 FC 404

BETWEEN:

KENNETH BARTKUS

Applicant

and

CANADA POST CORPORATION

Respondent

ASSESSMENT OF COSTS - REASONS

Bruce Preston

Assessment Officer

[1]               By way of Reasons for Judgment and Judgment dated January 16, 2009, the Court dismissed the Applicant’s judicial review with costs.

[2]               On January 27, 2009 the Respondent filed its Bill of Costs together with a letter requesting an assessment of the Bill of Costs.

[3]               On January 29, 2009 a direction was issued setting a timetable for the filing of materials.

[4]               The time limits set by the direction have now passed and at this time no materials have been filed by the Applicant. Pursuant to the direction the Respondent has filed an Amended Bill of Costs, an affidavit of Janet Ockerse and submissions regarding the assessment of costs.

[5]               In Reginald R. Dahl v. HMQ [2007] F.C.J. No.192  at paragraph 2, the assessment officer stated:

            Effectively, the absence of any relevant representations by the Plaintiff, which could        assist    me in identifying issues and making a decision, leaves the bill of costs unopposed. My view,        often expressed in comparable circumstances, is that the Federal Courts Rules do not             contemplate a litigant benefiting by an assessment officer stepping away from a position of           neutrality to act as the litigant’s advocate in challenging given items         in a bill of costs.   However, the assessment officer cannot certify unlawful items, i.e. those outside the       authority of the judgment and the Tariff.”

[6]               Following the reasons cited above, I have reviewed the decision of the Court, the Application Records of the parties and materials filed in support of the assessment. With the exception of Item 15 and the claim for provincial sales tax, assessable services and disbursements will be allowed as claimed.

[7]               The Respondent has claimed 7 units for the preparation and filing of written argument, where requested or permitted by the Court. I can find no order or direction of the Court requesting or permitting written argument. Further, the only written argument filed by the Respondent is the Memorandum of Fact and Law contained in the Respondents Application Record, which is provided for under Item 2. I am therefore without jurisdiction to allow the claim under Item 15.

[8]               The Respondent claims $403.20 in Provincial Sales Tax (PST) on assessable services. The definition of “taxable service” found under subsection 1(1) of the Retail Sales Tax Act, R.S.O. 1990, c. R.31, does not mention “legal service”. As an assessment should only indemnify for actual costs, I disallow the amount claimed.

[9]               For the above reasons, the Bill of Costs presented at $8,033.92 is allowed for a total amount of $6,748.72. A certificate of assessment will be issued.

     “Bruce Preston”

Toronto, Ontario

April 22, 2009

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-93-08

STYLE OF CAUSE:                          KENNETH BARTKUS v. CANADA POST CORPORATION

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

PLACE OF ASSESSMENT:                                                 TORONTO, ONTARIO

REASONS FOR ASSESSMENT OF COSTS:                    BRUCE PRESTON

DATED:                                                                                 APRIL 22, 2009

WRITTEN REPRESENTATIONS:

SOLICITORS OF RECORD: