Date: 20091209
Dockets: A-547-05
A-548-05
Citation: 2009 FCA 363
A-547-05
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
ADELA GILBERT
Respondent
A-548-05
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
PIERRE GILBERT
Respondent
ASSESSMENT OF COSTS – REASONS
DIANE
PERRIER, ASSESSMENT OFFICER
[1]
This
is an assessment of the appellant’s bill of costs following a judgment of the
Federal Court of Appeal dated April 4, 2007, which allowed the appellant’s
appeal from a decision of the Tax Court of Canada with costs, dismissed the
respondent’s cross-appeal with costs and set aside the decision of the Tax
Court of Canada. The Federal Court of Appeal rendered the judgment which the
Tax Court of Canada should have rendered, namely “the appeal filed by the respondent
against the Minister’s assessment is dismissed with costs”.
[2]
On
August 25,
2009,
the appellant filed its bill of costs, supported by the affidavit of Marie‑Aimée Cantin,
counsel, and exhibits A‑1 to A‑5 inclusively, and requested
that the assessment be disposed of in writing. Letters were sent to the parties
establishing a timetable for the filing of written representations. The parties
filed their written representations in the court record. On November 4,
2009, the respondents filed a reply to the appellant’s reply, even though this was
not provided for in the timetable for the filing of written representations. The
respondents requested that the document be submitted to the assessment officer,
and the document was filed in the record. I am now ready to assess the costs.
[3]
In
response to the respondents’ document submitted on November 4,
2009,
I would like to specify the following points: when the Court renders a judgment
with costs under Rule 400 of the Federal Courts Rules, the
assessment officer’s role is to quantify the amount of the costs. In addition,
the respondents are requesting that the assessment officer adjust the costs in
light of the file in Superior Court. The assessment officer is defined in
Rule 2 of the Federal Courts Rules as “an
officer of the Registry designated by an order of the Court . . .”, and under
Rule 405 of the Federal Courts Rules, costs are assessed by the
assessment officer. Accordingly, the assessment officer does not have
any jurisdiction in a court other than the federal courts and can therefore not
adjust the costs claimed by the respondents.
[4]
The
appellant is claiming the following counsel fee items:
- item 17
– preparation, filing and service of the notice of appeal in docket A-547-05
(1 unit),
- item 17
– preparation, filing and service of the notice of appeal in docket A-548-05
(1 unit),
- item 18
– preparation of appeal book for dockets A-547-05 and A-548-05 (1 unit),
- item 19
– appellant’s memorandum of fact and law (5 units),
- item 19
– appellant’s memorandum of fact and law as a respondent in the cross-appeal
(5 units),
- item 20
– requisition for hearing (1 unit),
- item 21
(a) – counsel fees: motion, preparation of the respondent’s motion
record (2 units),
- item 22
(a) – counsel fees for the hearing on February 21, 2007, to first
counsel, per hour (2 units x 2.75 hours),
- item 25
– services after judgment not otherwise specified, and
- item 26
– assessment of costs (4 units).
[5]
I
allow all of the counsel fees claimed, except for item 26 – assessment of
costs, for which I allow three units, which I consider to be reasonable in
this case. As far as the two claims under item 17, preparation, filing and
service of each of the notices of appeal, are concerned, it is my opinion that
the appellant had to file two notices of appeal because Justice Nadon’s order
allowing the motion for the consolidation of dockets A-547-05 and A-548-05 was made
after both notices of appeal were filed. I therefore allow both claims under item 17.
The respondents state that only four units should be allowed under items 19,
appellant’s memorandums of fact and law, because the memorandums are only 11
pages long and therefore the minimum number of units should be allowed. In my
opinion, considering the type of case, Rule 400(3) of the Federal Courts
Rules and what seems to me to be reasonable, I will allow the five units
claimed for each of the memorandums. The respondents are opposed to item 25
because in their opinion, such services were not rendered. In my view, as the
appellant states in its written representations in reply to paragraph 3 and the
case law submitted, namely Richards v. Canada, [2005] F.C.J. No. 334
(QL), 2005 D.T.C. 5157, the appellant does not have to provide justification
for this item, since the item is meant to compensate for services rendered after
a final judgment. On April 1, 2009, the unit value of
Tariff B was increased from $120 to $130. As the appellant’s bill of costs
was filed on August 25, 2009, I have therefore adjusted Tariff B items
accordingly. I therefore allow counsel fees in the amount of $3315.
[6]
As
far as disbursements are concerned, I allow an amount of $320.50 for
photocopies, $130.63 for bailiff’s fees, $33.70 for courier fees and $40.66 for
text transcript costs, totalling $525.49. I allow all uncontested disbursements
because they seem to be reasonable, required for the conduct of the proceeding
and established by the affidavit of Marie-Aimée Cantin.
[7]
I
did not allow the following disbursements: invoice J0018797 for photocopies in the
amount of $20.42 because this invoice does not seem to correspond to any of the
documents filed on record. I did not allow invoice J0018135 for photocopies in the
amount of $171.87 or invoice P‑136204 for bailiff’s fees in the amount of
$137.91 because the Court order dated July 12, 2007, concerning the motion
for a stay of order makes no mention of costs.
[8]
Invoice
J0017889 in the amount of $43.72 for photocopies was allowed because it was for
the photocopying of the appellant’s book of authorities. Invoice J0019636 in
the amount of $25.07 is allowed for the photocopying of two (2) responding
motion records because both Court orders dated December 10,
2007,
were granted with costs. Invoice P‑143935 in the amount of $100.81 and
invoice P‑143936 in the amount of $14.84 for bailiff’s fees for the
service of the two (2) responding motion records were allowed because both
Court orders dated December 10, 2007, were granted with costs.
[9]
The
respondents also oppose the amount of $40.66 for the transcript of the hearing
before the Tax Court of Canada. I allow this invoice because under Rule 344(2)
of the Federal Courts Rules, transcripts are part of the appeal book and
the appellant could therefore claim this disbursement.
[10]
I
allow the appellant’s court fees under Tariff A in the amount of $100 for the
filing of the notices of appeal in dockets A-547-05 and A-548-05.
[11]
The
bill of costs for $4135.69 submitted by the appellant is assessed and allowed
for in the amount of $3940.49. A certificate of assessment will be issued for
this amount. A copy of the reasons for the assessment in the lead file (A-547-05)
will be filed in the related docket (A-548-05) to serve as reasons therein.
“Diane Perrier”
DIANE
PERRIER
ASSESSMENT
OFFICER
MONTRÉAL, QUEBEC
December
9, 2009
Certified
true translation
Johanna
Kratz
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