Haghparast-Rad v. Canada (Attorney General), 2011 FC 1072

Date: 20110916

Docket: T-1654-09

Citation: 2011 FC 1072

BETWEEN:

SAM HAGHPARAST-RAD

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

ASSESSMENT OF COSTS - REASONS

Bruce Preston

Assessment Officer

[1]               On March 17, 2011 the Applicant discontinued his Application for Judicial Review.

[2]               On June 29, 201 the Respondent filed its Bill of Costs together with a letter requesting an assessment of their Bill of Costs.

[3]               After reviewing the Bill of Costs it was determined that this was an assessment which may proceed by way of Written Submission. On July 7, 2011, a direction was issued setting the time limits for the filing of material.

[4]               The time limits set by the direction have now passed and at this time no materials in opposition to the Bill of Costs have been filed by the Applicant. Pursuant to the direction the Respondent has filed its Bill of Costs, an affidavit of Jude Pattenden and the Respondent’s submissions regarding the assessment of costs.

[5]               At paragraph 4 of its Submissions regarding Assessment of Costs, the Respondent correctly submits:

Rule 402 of the Federal Courts Rules, 1998 provides that a party against whom an application has been discontinued is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party, unless the Court has ordered or the parties have otherwise agreed.

[6]               In Reginald R. Dahl v. HMQ 2007 F.C. 192  at paragraph 2, the assessment officer stated:

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.

[7]               Having regard to the fact that the Applicant did not file any submissions in opposition to the Bill of Cost, and following the reasons cited above, I will allow the assessable services and disbursements as submitted, with the exception of the amount claimed under Item 5 for assessable services, preparation and filing of a contested motion and any disbursements claimed for said contested motion.

[8]               The Respondent has claimed 7 units under Item 5 for the preparation and filing of a response to the motion for an extension of time. Having thoroughly reviewed the file and the recorded entries for the proceeding I was unable to locate any reference to a motion for an extension of time. Through the course of the proceeding there were three consents to extension pursuant to Rule 7(1) of the Federal Courts Rules 1998 filed. However, these cannot be claimed under Item 5. In reviewing the invoices from Kilrea Bailiff and Process Servers it is apparent that on September 16, 2009 the Respondent filed a motion record on file 09-T-40. Although this file is a preliminary file to the matter before me, I have not been provided with any jurisprudence to support the contention that I have jurisdiction to allow costs from a preliminary file when assessing the costs of a judicial review. Furthermore, in the event that I have such jurisdiction, the order allowing the extension of time on file 09-T-40 did not award costs to the Respondent. It has been held 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). For these reasons the Respondent’s claim under Item 5 is not allowed.

[9]               In keeping with this reasoning, the disbursements for “preparation of motion – on-line

Enquiry”, claimed at $170.89 and process server fees for the filing of the motion record, claimed at $36.75 are not allowed.

[10]           For the above reasons, the Bill of Costs presented at $2,011.92 is assessed and allowed for a total amount of $1,414.28. A certificate of assessment will be issued.

     “Bruce Preston”

Toronto, Ontario

September 16, 2011

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1654-09

STYLE OF CAUSE:                          SAM HAGHPARAST-RAD v. ATTORNEY GENERAL OF CANADA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

PLACE OF ASSESSMENT:                                                 TORONTO, ONTARIO

REASONS FOR ASSESSMENT OF COSTS:                    BRUCE PRESTON

DATED:                                                                                 SEPTEMBER 16, 2011

WRITTEN REPRESENTATIONS:

SOLICITORS OF RECORD: