Date: 20090915
Docket: T-1049-08
Citation: 2009 FC 916
BETWEEN:
GHEORGE CAPRA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Judgment and Judgment dated October 29, 2008, the Court
dismissed the Applicant’s judicial review with costs to the Respondent.
[2]
On
February 11, 2009 the Respondent filed its Bill of Costs together with the
Affidavit of Janet Strand.
[3]
Upon
reviewing the file it was determined that this was an assessment of costs that
would be suitable for disposition by way of written submissions. By direction
dated July 3, 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]
By
way of written submission filed August 14, 2009 the Applicant makes no
submission concerning assessable services, contesting only the photocopying
disbursement charge.
[5]
Faced
with such limited submissions, 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.
[6]
The
Respondent has claimed 7.5 units under Item 14(b), counsel fee to second
counsel, where Court directs, 50% of amount calculated under paragraph (a). The
position taken by the Respondent concerning Item 14(b) is set out at paragraph
5 c. of its Written Submissions:
Given the nature of the arguments raised
by the Applicant, and their implications for the Respondent’s legislation at
issue, argument at the oral hearing required significant work and expertise.
The complexity of the issues raised easily justifies the use of 2nd
counsel in this instance.
[7]
In
support of this position the Respondent relies on Abbott v. Canada, 2007
FC 1338, [2007] F.C.J. No. 1731, at paragraphs 18 and 19. I have read the
decision of the Honourable Mr. Justice Russell and find it very helpful in
elucidating the factors which must be considered, however, Justice Russell is a
member of the Court.
[8]
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.
[9]
Item
14(b) includes the provision “where Court directs”. As an assessment officer is
not a member of the Court, and there being no direction or order of the Court concerning
second counsel on file, I am without jurisdiction to allow the amount claimed
under Item 14(b).
[10]
Having
reviewed the file, the decision of the Court and the Bill of Costs, I will
allow all other assessable services as presented.
[11]
Having
regard to disbursements, the Affidavit of Janet Strand clearly outlines the
disbursements of the Respondent. As indicated earlier, in reply the Applicant’s
only submission related to photocopying disbursements. The disbursements for
service and filing of documents and translation services are supported by
invoices and remain uncontested. As these disbursements are reasonable and
necessary to the litigation process, I will allow them as claimed.
[12]
At
paragraph 8 of its written submissions the Respondent submits:
The Respondent concedes that all
photocopying was done in-house, and the amount of $0.25 per page represents a
notional charge, which may be reduced in the Assessment Officer’s discretion.
However, contrary authority has repeatedly allowed $0.25 to be a reasonable
amount per page for in-house photocopying. It is clear that photocopying six
copies of all materials, for the Court and three counsel, was reasonable and
essential.
[13]
In
support of this argument the Respondent refers to Zhang v. Canada (Attorney
General), 2009 FCA 54, [2009] F.C.J. No. 238, Forestex Management Corp.
v. Lloyd’s Underwriters, Lloyd’s, London, 2005 FC 263, [2005] F.C.J. No.
332, and Canadian Union of Public Employees, Local 4004 v. Air Canada, [1999]
F.C.J. No. 464 at paragraph 7.
[14]
In
reply the Applicant refers to Diversified Products Corp. v. Tye-Sil Corp.,
[1990] F.C.J. No. 1056, and submits “the photocopying costs in this case
are substantial. It is submitted, in the absence of any evidence of actual
cost, that $.10 a page is a more reasonable charge”.
[15]
In
the circumstances of this particular file, I find that $0.10 a page is an
unreasonably low amount to allow. On the other hand, Zhang v. Canada (Attorney
General),
cited above at paragraph 13, was a case before the Federal Court of Appeal. As
this matter is before the Federal Court there is not a requirement to file as
many copies of documents with the Court. Pursuant to Rule 309(1)(a)(i) of the
Federal Courts Rules the Respondent is required to file 3 copies of its
Application Record. In order to account for the fact that fewer copies are
required for the Court, I will allow photocopying at $1,360.00.
[16]
Further
to these reasons, the Bill of Costs presented at $7,289.75 is allowed for a
total amount of $6,098.25. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
September 15,
2009
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