Date:
20091014
Docket: T-838-06
Citation: 2009 FC 1037
BETWEEN:
TORONTO SUN WAH TRADING INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Judgment and Judgment dated October 24, 2007, the Court
dismissed the application for judicial review with costs in favour of the
Respondent.
[2]
On
May 1, 2009 the Respondent filed its Bill of Costs together with a letter requesting
an assessment of costs by way of written submission. A direction was issued setting
a timetable for the filing of material and the parties have now filed their
submissions concerning costs.
[3]
The
Respondent has claimed Item 2 four times (7 units three times and 1 unit once)
for a total claim of 22 units. Item 2 states: “Preparation and filing of all
defences, replies, counterclaims or respondents’ records and materials”
(emphasis added). The inclusion of the word all in Item 2 implies that a party
is entitled to claim Item 2 once for all defences, replies, counterclaims or
respondents’ records and materials. It is not intended to provide an Item 2
claim for each of the documents listed. This finding is supported by Abbott Laboratories v. Canada (Minister of Health) 2008 FC 693 at paragraph 95.
[4]
One
of the several documents claimed under Item 2 was the Notice of Appearance.
Given the wording of Item 2, I find that it does not apply to the filing of a
Notice of Appearance. It has however been previously held that the filing of a
Notice of Appearance may be claimed under Item 27: McRae v. Canada (Attorney
General)
2006 FC 801. Following the finding of that decision I will allow 1 unit under
Item 27 for the filing of the Notice of Appearance.
[5]
Concerning
the other documents claimed under Item 2, having reviewed the judgment of the
Court, it is clear that the Respondent was required to address the
applicability of Section 20 (1) (a) to (d) of the Access to Information Act
R.S.C. 1985, c. A-1 (the Act), as it related to 10 different documents.
Although I will not allow for the letters claimed, given the level of
complexity and the fact that at least one section of the Act stipulated four
conditions which had to be addressed, I allow Item 2 at 6 units.
[6]
Concerning
Items 13(a) and 14(a), I find the Appellants submissions to be in disregard of
Tariff B. Column III of Item 13(a) allows for a range of between 2 and 5 units.
Once costs have been awarded and it has been determined that Item 13(a) is
applicable, as an Assessment Officer, it is not open to me to allow 1 unit,
unless directed to do so by the Court. Similarly, for a hearing with a duration
of 4.25 hours, absent a direction of the Court, the minimum allowable would be
8.5 units (2 units/hour).
[7]
Having
reviewed the file to confirm the duration of the hearing, the judgment of the
Court and the materials filed concerning the assessment and, taking into
account the complete success of the Respondent on the judicial review, I allow
Items 13(a), 14(a) as claimed.
[8]
The
Appellant has submitted that Item 25 should not be allowed as the Respondent
makes no reference to services after judgment. Although the Respondent makes no
specific mention of services after judgment it was submitted that: “counsel
fees and disbursements submitted are reasonable and in accordance with the work
performed by the Respondent’s counsel with respect to this judicial review”. I
allow Item 25 at 1 unit as presented.
[9]
The
Appellant has submitted that Item 26 should be allowed at 2 units as the
assessment was in writing. On the other hand, the Appellant has submitted that
the internal cheque vouchers submitted by the Respondent were not sufficient as
actual proof of payment to outside process servers and copy centres. As a
result the Respondent undertook to provide the actual invoices by September 30,
2009. Taking into account that the assessment was in writing and having regard
to the additional work performed by the Respondent in order to provide the
supporting invoices, I allow Item 26, as presented, at 3 units.
[10]
Having
read the evidence filed in support of the Bill of Cost and reviewed the file,
specifically the Respondent’s Application Record and, having been able to ascertain
from the record that the miscellaneous photocopying corresponds with the filing
of the Affidavit of Rina Li and the filing of tribunal documents requested by
the Applicant, I find the disbursements to be reasonable and necessary in the
circumstances of this particular case.
[11]
For
the above reasons, the Bill of Costs, presented at $5,698.86 is allowed at $3,898.86.
A certificate of assessment will be issued.
“Bruce
Preston”
Toronto, Ontario
October 14, 2009
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