Date: 20090608
Docket: T-1248-07
Citation: 2009 FC 608
BETWEEN:
ANTHONY MOODIE
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA as represented by the
MINISTER OF NATIONAL DEFENCE
Defendant
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Order and Order dated November 6, 2008, the Court dismissed the
plaintiff’s motion appealing the decision of Prothonotary Milczynski dated May
27, 2008, struck the Amended Statement of Claim in its entirety and the action
was dismissed with costs to the respondent (defendant) throughout.
[2]
On
January 5, 2009 the defendant filed its Bill of Costs together with a letter
requesting an appointment for an assessment of their Bill of Costs.
[3]
Upon
reviewing the file it was determined that this was an assessment that would be
suitable for disposition by way of written submissions. By direction dated
January 12, 2009, amended January 23, 2009, a timetable was established for the
filing of written submissions. The time limits set by the direction have now
passed and materials have been filed by both parties.
[4]
Counsel
for the plaintiff submits “the Plaintiff is impecunious and has no money or
assets to pay costs”. Counsel proceeds to outline the issues before the Court
on the motion to strike and concludes:
Justice Harrington relied on the cases of
Bernath to support the proposition that an action for damages for breach
of Charter Rights could proceed without resort to judicial review.
There are several subsequent decisions
that support the view that a Plaintiff can sue for damages for breach of Charter
rights as a result of administrative action without the prerequisite of
judicial review where the remedy being sought was independent of issues arising
in judicial review and where judicial review is unable to grant the money
damages sought. This was such a case.
For these reasons the Plaintiff submits
that no costs should be allowed.
[5]
In
the Affidavit of Anthony Moodie, the plaintiff provided evidence supporting the
submission that the plaintiff is impecunious and outlines the failures of the
grievance process. At paragraph 2 of his affidavit Anthony Moodie submits that:
I am in a dire financial position and I
am currently facing pressing and enormous financial obligations, especially with
this current obligation as a result of the cost awarded by the Courts to the
Respondent in the above case. This has placed additional financial strain on my
limited resources upon which my family relies for our subsistence.
[6]
In
the Affidavit of Claudette Paul, the plaintiff simply submits a copy of the
Reasons for Order and Order of The Honourable Justice Harrington dated August
26, 2008 rendered on this file.
[7]
Throughout
the submissions of the plaintiff, including the supporting affidavits, there was
an absence of submissions relevant to the issue before me. The only submission
directly relating to the award of costs addressed the dire financial position
of the plaintiff.
[8]
The
plaintiff’s argument regarding his inability to pay costs considering his dire
financial position cannot be a consideration in the assessment of costs. As
held in Solosky v. Canada, [1977] 1 F.C. 663, and
confirmed in many subsequent decisions:
Furthermore, in deciding whether costs should or should not be
awarded against an unsuccessful plaintiff, neither the ability to pay nor the
difficulty of collection should be a deciding factor but, on the contrary, the
awarding or refusal of costs should be based on the merits of the case. Unless
special circumstances exist to justify an order to the contrary, costs should
normally follow the event.
[9]
Faced
with the circumstances set out above, I will follow the reasons in Dahl v. Canada,
2007 FC 192, [2007] F.C.J. No. 256, at paragraph 2:
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.
[10]
In
keeping with the above, I have reviewed the file and find the disbursements
claimed to be reasonable and necessary. I will allow disbursements as presented
in the amount of $250.40. The $1,200.00 lump sum award of costs from the order
of Prothonotary Milczynski dated May 27, 2008 is allowed as the order was
upheld by the order of November 6, 2008.
[11]
Concerning
the motion appealing the decision of the prothonotary, I have confirmed from
the file that there was a hearing on September 22, 2008, which resulted in the
Reasons for Order and Order dated November 6, 2008. The defendant has submitted
claims under Tariff B section E (Trial or Hearing) for Items 14 (counsel fee
per hour in court) and 15 (preparation and filing of written argument, where
requested or permitted by the Court). Although there is no mention of the date
of the hearing, the defendant’s submissions make it clear that the costs
submitted relate to said order.
[12]
Pursuant
to Tariff B of the Federal Courts Rules, under section B of assessable
services (motions), there are only 3 items which may be allowed respecting
motions:
Item 4 – Preparation and filing of an
uncontested motion, including materials and responses thereto.
Item 5 - Preparation and filing of a
contested motion, including materials and responses thereto.
Item 6 – Appearance on a motion, per
hour.
[13]
Having
regard to the above provisions, and the plaintiff having submitted a claim for
attendance at court under Item 14, and having reviewed the file and confirmed
that there was a hearing of said motion, I will allow 1 unit for 30 minutes for
the appearance on the motion (Item 6).
[14]
I
am not able to allow the amounts claimed under Item 14(b) for second counsel or
Item 15. Under both of these items there is a requirement for the Court to make
an award or direction. Item 14(b) includes the provision “where Court directs”
and Item 15 includes “where requested or permitted by the Court”.
[15]
In
Balisky v. Canada (Minister of Natural
Resources),
2004 FCA 123, [2004] F.C.J. No. 536, at paragraph 6 the assessment officer
states:
Rule 400(1), which vests full
discretionary power in the Court over awards of costs, means that orders and
judgments must contain visible directions that costs have been awarded. Given
the Federal Courts Act, ss. 3 and 5(1) defining the Court and
Rule 2 of the Federal Court Rules, 1998 defining an assessment officer,
the absence of that exercise of prior discretion by the Court leaves me without
jurisdiction under Rule 405 to assess costs.
[16]
Since
an assessment officer is not a member of the Court, and there is no direction or
order concerning second counsel or written submissions, I am without jurisdiction
to allow the amounts claimed under Items 14(b) and 15.
[17]
Further
to these reasons, the Bill of Costs presented at $2,667.90 is allowed for a
total amount of $1,510.40. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
June 8, 2009
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