Dockets: A-144-12
A-531-12
Citation:
2015 FC 722
Ottawa, Ontario, June 8, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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VLASTA STUBICAR
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Appellant (Plaintiff)
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and
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HER MAJESTY THE
QUEEN
IN RIGHT OF
CANADA
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Respondent (Defendant)
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JUDGMENTS AND REASONS
[1]
Ms. Stubicar, a lawyer, represented herself in
two appeals before the Federal Court of Appeal. In the case bearing docket
number A-144-12, the Court of Appeal upheld Ms. Stubicar’s appeal and awarded
her “costs throughout” (2012 FCA 288 at para 6).
In the case bearing docket number A-531-12, the Court of Appeal dismissed her
appeal with costs (2013 FCA 239 at para 4). It fell upon Bruce Preston,
Assessment Officer, to tax the costs in each case.
[2]
In A-144-12, Ms. Stubicar’s costs were assessed
in the amount $372.78, which was the amount of disbursements claimed. Mr.
Preston disallowed the $2,100 claimed under Tariff B. Tariff B covers counsel
fees and disbursements allowable on assessment. Ms. Stubicar is of the view
that Mr. Preston was wrong to disallow the Tariff B items in respect of
assessable services. In A-531-12, in a reasoned decision, Mr. Preston
disallowed some items claimed and assessed Her Majesty’s costs at $1,162.46.
Before me are Ms. Stubicar’s motions in writing pursuant to rules 369 and 414
of the Federal Courts Rules for a review of both of these assessments.
[3]
In A-144-12, in which she was awarded costs, Ms.
Stubicar seeks an order setting aside the certificate of assessment and
referring the matter for reassessment of the relevant Tariff B items in
accordance with such directions the Court may issue. Let me say, at the outset,
that if Ms. Stubicar succeeds I will issue the certificate of costs the
assessment officer should have issued. It would be an intolerable waste of the
Court’s time to send the matter back.
[4]
In A-531-12, the case in which Her Majesty was
awarded costs, Ms. Stubicar submits that Mr. Preston erred in principle and
failed to properly review the evidence on the record and her submissions.
[5]
Were it not for the text of the Rules, and
various decisions of the Federal Court of Appeal, Ms. Stubicar might have had a
case. Her argument is that this case deprived her from earning income on other
matters (or caused her to work longer hours). There could be an analogy with a
corporation which repairs the damage caused to its property by the defendant.
In such a case, the plaintiff is entitled to charge the direct and indirect
cost of labour, but is not permitted to make a profit (Bell Telephone Co of
Canada v Montreal Dual Mixed Concrete Ltd and Highway Paving Co Ltd (1959),
23 DLR (2d) 346 (Québec Queen’s Bench, Appeal Side) and Air Canada v Canada
(1989), 28 FTR 148, [1989] FCJ No 234 (QL)). The idea is that labour would
otherwise have been put to other use.
[6]
Under Rules 400 and following, the Court has
full discretionary power with respect to costs. The Court may also give special
directions to the assessment officer which, in this case, it did not. Ms.
Stubicar could have requested directions pursuant to Rule 403, but she did not.
[7]
Under Rule 405, the assessment officer assesses
costs in light of the Tariff, unless the Court has issued special directions.
[8]
For the most part, the Court has not given
special directions to award Tariff B costs for assessable services to
self-represented litigants, be they lawyers or not. As stated in Lavigne v
Canada (Human Resources Development), 229 NR 205, [1998] FCJ No 855 (QL)
(CA) at paras 1-2, Tariff B does not contemplate the awarding of counsel fees
to lay litigants. The service cannot be rendered by a litigant to himself.
[9]
On occasion, the Court has made a special award.
In Sherman v Canada (Minister of National Revenue), 2003 FCA 202, the
Court of Appeal awarded some Tariff B costs to a self-represented lawyer. However,
the order read:
…a moderate allowance for the time and
effort devoted to preparing and presenting the case before both the Trial and
the Appeal Divisions on proof that the appellant, in so doing, incurred an
opportunity cost by forgoing remunerative activity.
[10]
Ms. Stubicar could have sought directions but
she did not. As Lord Atkins stated in Evans v Bartlam, [1937] AC 473 at
479:
The fact is that there is not, and never has
been, a presumption that everyone knows the law. There is the rule that ignorance
of the law does not excuse, a maxim of very different scope and application.
[11]
Ms. Stubicar has engaged in a microscopic
examination of the decision and submits that Mr. Preston misunderstood or
ignored the evidence and several submissions. I cannot agree. There is a
presumption that he fully considered the record. That presumption has not been
rebutted. In any event, the decision is reasonable in light of the record (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708).
[12]
An intervention in the decision of an assessment
officer is limited to cases where there has been an error in principle or when
the amount assessed is so unreasonable that an error in principle must have
been the cause (Apotex Inc v Merck & Co Inc, 2008 FCA 371 at para 10
and Bellemare v Canada (Attorney General), 2004 FCA 231 at para 3).
There was no such error in this case and the amount assessed was reasonable.
III.
Costs
[13]
Counsel for Her Majesty submits that both
assessment reviews should be dismissed with costs in each case of $400. In my
discretion, I shall fix costs at $400, $200 in each case.
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