Date: 20090219
Docket: T-2160-06
Citation: 2009 FC 178
BETWEEN:
ALI FAKIH, RABIH AWADA, KHALIL
LEZZEIK, MOHAMMED ZEITOUN, NABIL LEZZEIK, YOUSSEF MERHI, HUSSEIN TURKEI, KHODR
ISSA, AHMAD EL HAKIM, ABBAS LEZZEIK
Applicants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, THE MINISTER OF PUBLIC SAFETY and THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
Respondents
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of judgment dated January 10, 2008, the Court dismissed, with costs, the
Applicants’ motion for an Order setting aside the Order of Prothonotary
Aronovitch dated August 31, 2007, dismissing their application for judicial
review for delay.
[2]
On
July 3, 2008 the Respondents filed their Bill of Costs together with a letter
requesting an appointment for an assessment of their Bill of Costs in writing.
[3]
On
September 15, 2008, Christine Ball, Assessment Officer issued the following
oral direction (confirmed in writing):
The
Respondent may serve and file all materials (if not already done) including the
Bill of Costs, supporting affidavit and written submissions, by October 6,
2008; the Applicant may serve and file any reply materials by October 27, 2008;
the Respondent may serve and file rebuttal materials by November 17, 2008.
[4]
The
time limits set by the direction have now passed and at this time the Applicants
have failed to file any materials in opposition to the Bill of Costs. The only
material before me is the Respondents’ Bill of Costs which was filed together
with a copy of the Court’s Order of January 10, 2008.
[5]
Faced
with the circumstances set out above, I will follow the reasons in Reginald
R. Dahl v. HMQ [2007] F.C.J. No.192 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.
[6]
I
will allow the assessable services for Items 5 and 6 as they relate to the
events of November 30, 2007, December 3, 2007 and December 12, 2007.
[7]
Concerning
the hearing of January 10, 2008, I will allow the costs for the appearance on
the motion (Item 6) as submitted, however, Item 5, which deals with the
preparation and filing of a contested motion, including materials and response
thereto, causes concern.
[8]
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.
[9]
Having
regard to the above provisions, and having allowed the costs for the
preparation and filing of a motion record in response (the November 30, 2007
event), and having reviewed the file and noting that no further materials were
filed, I cannot allow the costs submitted under Item 5 for January 10, 2008.
Had Tariff B included provisions similar to the provisions under Item 8 for
discovery and examinations, it would have been open to me to consider these
costs. Absent such provision, it is not within my jurisdiction to allow these
costs.
[10]
The
amount claimed under Item 24, is not allowed. Under assessable services, Item
24 states “Travel by counsel to attend a trial hearing, motion, examination or
analogous procedure, at the direction of the Court” (emphasis added). In
Balisky v. Canada [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 Courts Rules, 1998 defining assessment officer, the absence
of that exercise of prior discretion by the Court
leaves me without jurisdiction under Rule 405 to
assess costs.
Since an assessment officer is not a member
of the Court, and the Order of January 10, 2008 provides no direction concerning
travel to attend the motion, I am without jurisdiction to allow the amount
claimed under Item 24.
[11]
The
amount claimed under Item 25 for services after judgment is allowed as
presented.
[12]
The Respondents claimed $209.83 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.
[13]
On
the question of disbursements, Tariff B 1(4) provides:
No disbursement, other than
fees paid to the Registry, shall be assessed or allowed under this Tariff unless
it is reasonable and it is established by affidavit or by the solicitor
appearing on the assessment that the disbursement was made or is payable by
the party. (emphasis added)
[14]
The
direction of September
15, 2008
invited the Respondents to serve and file a Bill of Costs, affidavit and
written submissions. No affidavits or submissions have been filed. Although I
must remain neutral, I have reviewed the file of the proceedings to determine
whether or not there is any evidence to support the disbursements claimed. I
was unable to find any evidence to support the following disbursements: Quicklaw,
Kilrea Bailiff & Process Servers and travel by counsel.
[15]
The
Respondents have claimed $246.25 for the cost of photocopies. While it is
clear from my review of the file that the Respondents did incur photocopying
expenses, I will apply the decision of the assessment officer in Métis
National Council of Women v. The Attorney General of Canada [2007] FC 961
at paragraph 21:
The
less that evidence is available, the more that the assessing party is bound up
in the assessment officer’s discretion, the
exercise of which should be conservative, with a
view to the sense of austerity which should pervade costs, to preclude prejudice
to the payer of costs. However, real expenditures are needed to advance litigation:
a result of zero dollars at assessment would be absurd.
[16]
The
claim for photocopying expenses will be allowed at $200.00.
[17]
Further
to these reasons, the Bill of Costs presented at $4,107.51 is allowed for a
total amount of $1,851.05. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
February 19,
2009
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