Moglica v. Canada (Attorney General), 2011 FC 466

 

 

Date: 20110415

Docket: T-528-08

Citation: 2011 FC 466

BETWEEN:

	ELLIOTT MOGLICA
		Applicant
	and
	ATTORNEY GENERAL OF CANADA
		Respondent

 

          ASSESSMENT OF COSTS - REASONS

Bruce Preston

Assessment Officer

[1]               On May 5, 2009 the Court dismissed the application for judicial review with costs. On December 30, 2010 the Respondent filed its Amended Bill of Costs dated August 31, 2010. Having determined that this is an assessment which may proceed in writing, a schedule was set for the exchange of materials. As the parties have filed their submissions as to costs, I will proceed with the assessment.

 

[2]               The Applicant has filed several documents in response to the Respondent’s Amended Bill of Costs. On June 23, 2010 and September 2, 2010, prior to the filing of the Amended Bill of Costs, the Applicant submitted documents objecting to the Bill on the grounds that it is invalid and requesting that the Court refuse the taxation of the Bill of Costs. In the Applicant’s Response filed June 23, 2010 the Applicant makes submissions concerning some of the Items claimed by the Respondent. The Applicant submitted further submissions on January 4, 2011, January 7, 2011 and February 14, 2011. The Applicant makes very similar submissions in all of these documents, that the Amended Bill of Costs is invalid, the Bill is late as over 6 months have passed since judgment and that the Applicant has been “suffering from non-stop tortures applied against me (sic: the Applicant) by people-in-power and authority”.

 

[3]               In arguing that the Amended Bill of Costs is late, the Applicant refers to Rule 83 of the Rules of the Supreme Court of Canada. The relevant subsections of Rule 83 are:

83. (1) Costs in a proceeding shall be taxed by the Registrar party and party in accordance with the tariff of fees and disbursements set out in Schedule B unless the Court otherwise orders.

(2) The party awarded costs shall, within six months after the order setting out the final decision on costs, serve on all parties who are liable to pay, and file with the Registrar, a notice of taxation in Form 83A together with a bill of costs in Form 83B. SOR/2006-203, s. 38.

 

[4]               Rule 83(2) states that the party who is entitled to costs must, within six months, serve and file a notice of taxation. Although this is the rule in the Supreme Court of Canada, it is not the case in the Federal Court. The Federal Courts Rules contain no such provision. As this assessment of costs is taking place in the Federal Court, and the Rules of the Supreme Court of Canada are not applicable to this proceeding, the Applicant’s objection that the Amended Bill of Costs is invalid because it is late, must fail.

 

[5]               As mentioned above, the Applicant has presented submissions concerning specific Items in his Response filed June 23, 2010. However, this predates the Amended Bill of Costs, dated August 31, 2010, which is before me. Regardless, I have reviewed the Applicants Response filed June 23, 2010 and confirmed that the Applicant’s submissions as to costs primarily focus on the Respondent’s materials filed in response to the Applicant’s motion for production of document. The Applicant submits that these materials were not properly filed as they were not served him and therefore no costs should be allowed.

 

[6]               Having reviewed the Applicant’s materials filed, I find that there is very little submitted that assists in assessing the costs of the Respondent.

 

[7]               It has been held on many occasions that, in the absence of any relevant representations which could assist an Assessment Officer in identifying issues and making a decision, 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. However, it has also been held that an Assessment Officer cannot certify unlawful items, i.e. those outside the authority of the judgment and the Tariff (see: Reginald R. Dahl v. HMQ 2007 FC No.192).

 

[8]               On December 30, 2010 the Respondent filed an Affidavit of Diane Tapsott sworn June 25, 2010 (the Affidavit of Disbursements). On January 28, 2011 the Respondent filed another Affidavit of Diane Tapscott sworn January 28, 2011, together with brief Written Submissions. In the Written Submissions, the Respondent contends:

It is our submission that the Amended Bill of Costs as filed with the Federal Court on December 30, 2010 are accurate and reasonable given the various proceedings that were taken in this matter. The Bills of Costs were prepared in accordance with the Tariffs found in the Federal Courts Rules.

 

[9]               The Respondent has claimed 4 units under Item 2, preparation and filing of all defences, replies, counterclaims or Respondents’ records and materials. Pursuant to Rule 407 of the Federal Courts Rules, the Respondent’s costs shall be assessed in accordance with column III of the table to Tariff B. The Applicant’s only submission is that the claim is invalid because the documents prove serious breaches of the Applicant’s rights. Without further elaboration, I do not find this to be a relevant representation which could assist in identifying issues and making a decision concerning Item 2. As the Respondent has claimed Item 2 at the low end of column III, I find that the amount claimed is reasonable in the circumstances and allow Item 2 as claimed.

 

[10]           The Respondent has claimed 2 units under Item 4 for the Applicant’s consent motion to amend the style of cause. The Respondent’s claim cannot be allowed. The Order dated June 11, 2008, granting the motion to amend the style of cause, makes no mention of an award of costs to the Respondent. It has been held many times 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.

 

[11]           Similarly, the Respondent has claimed 4 units under Item 5 and 1 unit for 2 hours under Item 6 for the Applicant’s motion for production of documents. This motion was disposed of by way of a Direction dated August 20, 2008. As the Court’s Direction makes no award of costs, for the reasons indicated in paragraph 11 above, the Respondent’s claims under Item 5 and 6 are not allowed.

 

[12]           Also, 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) as claimed. 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 Respondent’s claim under Item 15 is not allowed.

 

[13]           The Respondent has claimed 3 units under Item 13 and 2 units for 2 hours under Item 14. The Applicant made no submissions concerning these Items. Having reviewed the reasons of the Court and the Abstract of Hearing, I find that the amounts claimed are reasonable in the circumstances of this proceeding and allow Item 13 and 14 as claimed.

 

[14]           The final assessable service claimed is 1 unit under Item 28 for the services of a paralegal for the preparation of affidavits. Although these amounts have not been contested, this claim concerns me. The Respondent makes no submission concerning the affidavits. If the affidavits were in response of the motions, they cannot be allowed as the motions have not been allowed. If the affidavits relate to the Amended Bill of Costs then they should have been claimed under Item 26 for the Assessment of costs. Given the lack of substantiation Item 28 is not allowed.

 

[15]           Turning to disbursements, further to my decision concerning the motion to amend the style of cause and the motion to produce documents, I am not able to allow any disbursements related to these motions. After reviewing the Affidavit of Disbursements, I find that the disbursements of $49.50 to Nixon Legal Services, $111.09 and $28.71 to Avanti Paralegal Services are related to these motions and cannot be allowed. Having reviewed the file and the Affidavit of Disbursements, I find all other expenditures to be reasonable and necessary and they are allowed as claimed.

 

[16]           Finally, the Respondent has claimed PST for Assessable Services. Prior to the coming into force of the HST on July 1, 2010, the definition of “taxable service” found under subsection 1(1) of the Retail Sales Tax Act, R.S.O. 1990, c. R.31, did not mention “legal service”. As an assessment should only indemnify for actual costs, I disallow the amount claimed.

 

[17]           For the above reasons, the Respondent’s Bill of Costs, presented at $3,924.24 is assessed and allowed at $1,756.99.

 

 

“Bruce Preston”

 

Toronto, Ontario

April 15, 2011

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-528-08

 

STYLE OF CAUSE:                          ELLIOTT MOGLICA 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:                                                                                 APRIL 15, 2011

 

WRITTEN REPRESENTATIONS:

 

Elliott Moglica	FOR THE APPLICANT
Gillian Patterson	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

N/A	FOR THE APPLICANT
Myles J. Kirvan Deputy Attorney General of Canada	FOR RESPONDENT