Date: 20110324
Docket: T-1290-09
Citation: 2011 FC 365
BETWEEN:
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JOSEPH G. HERBERT
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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ASSESSMENT OF COSTS - REASONS
[1]
By
way of order dated June 22, 2010 the Court dismissed the application for
judicial review with costs.
[2]
The
Respondent filed its Bill of Costs on November 5, 2010.
[3]
On
November 10, 2010, a Direction setting a schedule for the exchange of materials
was issued. The Applicant files written costs submissions and the Respondent
filed the Affidavit of Lisa Minarovich and written submissions in rebuttal. As
both parties have filed submissions as to cost, I will proceed with the
assessment.
[4]
Concerning
the award of costs, the Applicant submits that the discretionary power under
Rule 400 of the Federal Courts Rules should be exercised and that no
costs should be awarded.
[5]
In reply, the Respondent submits that the Applicant’s submission
primarily focus on whether costs should be awarded. Counsel contends:
Clearly that issue has been determined by the Court in its order
of costs and there is no revisiting that order absent an appeal which was not
filed in this case.
[6]
I
will address this point prior to proceeding with the assessment.
[7]
I am
in agreement with the Respondent. Given the order of June 22, 2010, the
Applicant’s request must fail as the costs have already been awarded by the
Court. It has been held several times that Assessment Officers are not members
of the Court (see: Balisky v Canada, 2004 FCA 123). Therefore, even though
I have jurisdiction to decide which items of costs are to be allowed and their
quantum, I have no jurisdiction to usurp the discretion to award costs, vested
in the Court by Rule 400(1) (see: Carter-Wallace Inc. v Wampole Canada Inc. 2003 FC 990).
[8]
Continuing
with the Applicant’s submissions, he relies on Rule 400(3)(e) any written offer
to settle; Rule 400(3)(h) whether the public interest in having the proceeding
litigated justifies a particular award of costs; and Rule 400(3)(i) any conduct
of a party that tended to shorten or unnecessarily lengthen the duration of the
proceeding.
[9]
Having
regard to the offer to settle the Applicant submits that in December 2009 he
sent the Respondent a formal offer to settle and entered into discussions to
resolve the matter. The Applicant further contends that the parties were able
to resolve everything except the applicants actual discharge date from the
RCMP.
[10]
The Respondent made no submissions concerning the offer to settle.
[11]
Upon reviewing the Court’s order dated June 22, 2010, at paragraph
9 the Court held that the Applicant’s specific discharge date and period of
pensionable service were not properly raised in these proceedings. Further at
paragraph 10 of the Order, the Court held:
On December 14, 2009, after the Applicant initiated these
proceedings, the Minister revoked the decision that was the subject of these
proceedings and set aside the Applicant’s deemed pension option. Applicant has
therefore obtained the relief sought in his Notice of Application and MOFL, and
contemplated by section 14 of the Regulations, rendering these proceedings
moot.
[12]
Although the Applicant has raised the offer to settle as an issue,
the Court’s finding that the proceeding was moot actually supports the
Respondent’s position on costs. As a result, I find that the offer to settle
has no bearing on the quantum of costs to be allowed in this matter.
[13]
Concerning public interest, the Applicant submits that there is no
public interest in this litigation that justifies a particular award of costs.
Once again, the Respondent made no submissions concerning this issue.
[14]
The Applicants submission concerning public interest seems to
suggest that public interest cases justify higher costs. This argument is
contrary to the jurisprudence, which generally finds public interest to be
justification for lower costs (see: Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2002] F.C.J. No.
1795). Given the Applicants submission, I find that a lack of public interest,
has no bearing on the quantum of costs to be allowed in this matter.
[15]
With respect to conduct that unnecessarily lengthened the
proceeding the Applicant argues:
The Applicant believes that this matter could have been resolved
much sooner if the Respondent would have shown any interest and /or initiative
to resolve the matter in the preceding five months before the Minister revoked
his decision and the Applicant made an offer to settle. It is even further
troubling when part of the Respondent’s costs claimed is for an uncontested
motion for an extension of time so that the Respondent could submit materials
for the first time some five months after this application was made.
[16]
Although the Respondent made no submissions concerning this issue,
counsel did contend:
In terms of quantum sought the Applicant only contests the claim
for the costs of an uncontested motion for an extension of time, implying it
was required because of the Respondent’s neglect or inattentiveness. In fact
the extension was required because the Respondent had been engaged in
settlement negotiations with the Applicant which ultimately failed after 5
months.
[17]
It
is clear from the fact that the Respondent required an extension of time to
file materials that the proceeding was subject to some delay; however, I am in
agreement with the Respondent that any undue lengthening of the proceeding is
attributable to the unsuccessful attempt to settle this matter. Once again,
given the Court’s finding that the proceeding was moot, any undue delay
relating to the offer to settle could be seen to support the Respondent’s
claim, not the Applicants position. On the other
hand, given my finding that the offer to settle had no effect on the quantum of
costs, it would follow that the delay caused by the offer would not have any
impact on the costs in this matter.
[18]
Turning
to the Bill of Costs, the only item challenged by the Applicant is the
Respondent’s motion for an extension of time. The Respondent has claimed 2
units under Item 4. The Applicant submits that it is troubling that the
Respondent claimed costs for a motion for an extension of time so that the
Respondent could submit materials five months after this application was made.
[19]
As
indicated in paragraph 15 above, the Respondent submits that the motion for an
extension was required because the Respondent had been engaged in settlement
negotiations with the Applicant.
[20]
Although
I am in agreement with the Respondent as to the circumstances which
necessitated the motion for an extension of time, the Respondent’s claim cannot
be allowed. The order dated February 3, 2010, granting the motion for an
extension of time, makes no mention of an award of costs to the Respondent. It
has been held many time that absent an exercise of discretion by the Court, an
Assessment Officer, who is not a member of the Court, has no jurisdiction to
allow costs of a motion (see: Canada v. Uzoni 2006 FCA 344). Therefore, the
Respondent’s claim under Item 4 is not allowed.
[21]
For
the same reasons, it follows that the Respondent’s Disbursement to Avanti
Paralegal for filing of the Motion for Extension of Time, cannot be allowed.
Therefore, the claim for Invoice #56 in the amount of $36.86 is not allowed.
[22]
Concerning
the remaining counsel fees, in Reginald R. Dahl v. HMQ 2007 FC No.192
at paragraph 2, the assessment officer held:
“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.”
[23]
Although
not raised by the Applicant, I am not able to allow the Respondent’s claim
under Item 15, preparation and filing of written argument, where requested
or permitted by the Court (emphasis added). It
has been decided on many occasions that unless there is a specific order or
direction of the Court requesting written submissions, Item 15 cannot be allowed
(see: Ruckpaul v.
Canada 2004 FC 618). Having reviewed the file, I can find no
such direction of the Court; consequently the Respondents claim under Item 15
is not allowed.
[24]
Under Item 28 the Respondent has claimed one half of one unit for
the services of a paralegal for the preparation of the Bill of Costs. In the
normal course of an assessment, this would not be allowed as services related
to the assessment of costs are claimed under Item 26. However, the Respondent
has not submitted a claim under Item 26. Therefore, in the circumstances of
this particular assessment, I allow Item 28 as claimed as it is a lesser amount
than could have been claimed under Item 26 and therefore does not prejudice the
Applicant.
[25]
As mentioned earlier, the Applicant has not contested the amounts
claimed for the remaining Items and disbursements. Having reviewed the Bill of
Costs, the Order of the Court, the Affidavit of Disbursements of Lisa
Minarovich and the written submissions filed by the parties, I find that the
fees claimed under Items 2, 13 and 14 and the remaining disbursements claimed
fall within the authority of the Order of the Court and Tariff B of the Federal
Courts Rules. As I also find them to be reasonable and necessary for the
conduct of the proceeding, they are allowed as claimed in the Bill of Costs.
[26]
Finally, as the legislation creating a requirement to pay HST came
into force on July 1, 2010 and the final decision awarding costs predated the
coming into force, the HST claimed for assessable services is not allowed.
[27]
For the above reasons, the Respondent’s Bill of Costs is assessed
and costs are allowed at $2,804.98.
“Bruce Preston”
TORONTO, ONTARIO
MARCH 24, 2011
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