Bilodeau c. Canada (Minister of National Revenu), 2001 FCA 177

                                                                                                                               Date: 20010601

                                                                Docket: A-670-98

                                                                                               Neutral reference: 2001 FCA 177

Between:

                                                          PIERRE BILODEAU

                                                                                                                                             Plaintiff

                                                                         AND

                                   THE MINISTER OF NATIONAL REVENUE

                                                                                                                                         Defendant

                                       ASSESSMENT OF COSTS - REASONS

MICHELLE LAMY, ASSESSMENT OFFICER

[1]                 On October 17, 2000 the Court of Appeal dismissed the application for judicial review made by the plaintiff Pierre Bilodeau pursuant to s. 28 of the Federal Court Act against a decision of the Tax Court of Canada. Prior to that hearing, the Court allowed a motion by the defendant for an extension of the time to file the defendant's record. The question of costs was covered by an order by Décary J.A. dated October 12, 2000, which read as follows:

[TRANSLATION]

It is settled that the costs of the motion will be paid by the defendant whatever the fate of the motion . . . the plaintiff will be entitled to costs on his application whatever the fate of the latter.

[2]                 On March 19, 2001 the plaintiff filed his bill of costs in the amount of $6,311.65 and asked that it be assessed without a personal appearance by the parties. The defendant submitted his written representations on April 12 and the plaintiff filed his reply on April 23.

[3]                 The fees which are the subject of this assessment are as follows:

[4]                 On reading the record it appeared that the Court of Appeal directed that the defendant should be responsible for the costs of pleadings, whatever the outcome of the latter, in order to reinforce application of the Federal Court Rules, but gave no direction regarding assessment of the bill of costs. Under Rule 409 the assessment officer has complete discretion in determining the amount of costs to be assessed. He or she can take into account the factors set out in s. 400(3).

[5]                 In this connection, the defendant argued that the assessment officer should allow the minimum number or a lower number of units for the services of counsel, mentioning the fact that he was successful in the case of the motion as on the application for judicial review. I also consider that the outcome of the proceeding is an important factor which I must take into account in awarding the number of units.

[6]                 The plaintiff's fees resulting from this case are accordingly assessed as follows in the amount of $2,703.09, that is $2,350.00 plus tax:

0                    Preparation and filing of motion record: 5 units under item 1.

0                    Motion for extension of time: 4 units under item 5 for counsel's preparation to respond to the defendant's motion and 2 units x 45 minutes under item 6.

0                    Hearing of application for judicial review: 4 units under item 13(a) and 2 units x 2 hours under item 14(a).

0                    No compensation is awarded under items 18, 19, 20 and 22 of the Tariff as those items apply to appeals in the Court of Appeal. Although the application for judicial review was heard in the Court of Appeal, I consider that items 1 to 15 of Tariff B are more appropriate. The rules governing the applications for judicial review are the same whether the proceeding is heard by the Trial Division or the Appeal Division of the Federal Court. It should be noted that Rules 300 do not cover the preparation of an appeal book and the memorandum of fact and law is included in the plaintiff's record.

0                    Miscellaneous: I award 4 units for the assessment and item 25 is allowed as such.

[7]                 The defendant did not challenge the disbursements claimed in the amount of $1,262.01 for the following expenses:

            $50.00                     Tariff A - filing of application for judicial review

          $140.01                     Cost of service (including tax)

       $1,072.00                     Photocopying costs

[8]                 This bill of costs is accordingly assessed in the amount of $3,965.10. A certificate is issued for that amount.

MONTRÉAL, QUEBEC

June 1, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                              FEDERAL COURT OF CANADA

                                                           APPEAL DIVISION

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No.: A-670-98

Between:

                                                          PIERRE BILODEAU

                                                                                                                                             Plaintiff

                                                                         AND

                                   THE MINISTER OF NATIONAL REVENUE

                                                                                                                                         Defendant

ASSESSMENT OF COSTS WITHOUT PERSONAL APPEARANCE

PLACE OF ASSESSMENT:        Montréal, Quebec

REASONS OF:                              MICHELLE LAMY, ASSESSMENT OFFICER

DATE OF REASONS:                  June 1, 2001

SOLICITORS OF RECORD:

Frédéric St-Jean                                                                       for the plaintiff

Sainte-Foy, Quebec

Morris Rosenberg                                                                     for the defendant

Deputy Attorney General

Ottawa, Ontario