Date: 20081021
Docket: A-421-06
Citation: 2008 FCA 315
BETWEEN:
AIDAN
BUTTERFIELD
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
A
copy of these reasons is filed today in each of Federal Court files T-2056-04,
T-2057-04 and T-5-05 (the Federal Court Matters) and applies there accordingly.
The Federal Court Matters were three discrete applications for judicial review
in respect of the suspension of the Appellant’s pilot licence. An order dated
May 25, 2005 consolidated the Federal Court matters for the purpose of hearing.
The Federal Court dismissed them on July 18, 2006 “with costs to the Respondent
to be assessed on the basis of Column III, Tariff B, one counsel fee.” On
September 17, 2007, the Federal Court of Appeal dismissed with costs this
appeal of the Federal Court decision. I issued a timetable for written
disposition of the assessment of the Respondent’s bill of costs presented in
each court.
[2]
The
Appellant argued further to Urbandale Realty Corp. v. Canada, [2008]
F.C.J. No. 910 (A.O.) that the assessments of costs should be adjourned sine
die because of the Respondent’s delay in pursuing costs and because the
Respondent had not complied with the directions for their conduct. I am
satisfied on the record that the Respondent did not delay or otherwise hinder
conduct of these assessments of costs: they shall proceed.
[3]
Consistent
with my approach outlined in paragraph 2 of Halford v. Seed Hawk Inc.,
[2006] F.C.J. No. 629 (A.O.) [Halford], my account in these reasons
of the respective positions of the parties is at times somewhat summary in
nature. It is detailed enough for an understanding of the notion of issues
between the parties, but should be read keeping in mind that there are many
more nuances and details of the issues in the record, all of which I have read
and considered. My findings in Halford above, Biovail Corp. v.
Canada (Minister of National Health and Welfare) (2007), 61 C.P.R. (4th)
33, [2007] F.C.J. No. 1018 (A.O.), aff’d [2008] F.C.J. No. 342 (F.C.) and Abbott
Laboratories v. Canada (Minister of Health) (2008), 66 C.P.R. (4th)
301, [2008] F.C.J. No. 870 (A.O.) [Abbott] (under appeal) set out my
views on thresholds of proof for categories of costs and approach to their
assessment. Paragraphs 68 - 71 inclusive of Abbott summarize the
subjective elements of assessments of costs.
[4]
Further
to my conclusions in Balisky v. Canada (Minister of
Natural Resources), [2004] F.C.J. No. 536 (A.O.) at para. 6 and Aird
v. Country
Park Village Properties
(Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at para. 10, I agree with
the Appellant that no costs are assessable for orders silent on costs. I also
agree with him that the bill of costs for the Federal Court Matters does not
identify the contested motion for which counsel fee item 5 (preparation) is
claimed. However, I note two orders (January 11 and March 21, 2005,
respectively) entitling the Respondent to costs. I allow the single
mid-range claim here of 5 units ($120 per unit). I agree with the Appellant
that fee item 2 (preparation of Respondent’s material) cannot be claimed for an
appeal matter. I agree with the Appellant that item 13 (preparation for trial
or hearing) is not assessable for an appeal. However, further to my conclusions
in paragraph 10 of Gardner v. Canada (Attorney
General),
[2008] F.C.J. No. 284 (A.O.), I allow item 27 (other services) instead at the
minimum 1 unit.
I. The Federal Court Matters
A. Counsel Fees
Fee
items 2 (Respondent’s record / available range = 4 – 7 units) claimed at 7
units; 13(a) (preparation for hearing / 2 – 5 units) claimed at 5 units;
14(a)
(attendance at hearing / 2 – 3 units per hour) claimed at 2 units per hour for
3 hours;
15
(written argument / 3 – 7 units) claimed at 7 units and
26
(assessment of costs / 2 – 6 units) claimed at 3 units
(1) The Respondent’s Position
[5]
The
Respondent argued that, although each of the Federal Court Matters was of
average complexity, their combined work warrants the maximum fee item 2 and
13(a) claims. The Appellant’s mode of conduct complicated the interlocutory
hearings.
(2) The Appellant’s
Position
[6]
The
Appellant argued further to a number off authorities including Carlile v.
Canada (M.N.R.) (1997), 97 D.T.C. 5284 (T.O.) [Carlile], that the
Respondent’s evidence did not establish entitlement to indemnification of costs
and the relevance and actual amount of work. The Appellant suggested the
minimum 4 units for fee item 2.
[7]
The
Appellant argued that as the record indicates that preparation by counsel for
the Respondent for the hearing was confined to her memorandum of fact and law
which she simply read at the hearing, fee item 13(a) should be reduced to the
minimum 2 units. The record indicates a sitting from 9:30 to 11:55 a.m. The
recess time therein of 20 minutes is not assessable. As Tariff B2(2) prohibits
the allocation of a fraction of a unit, the remaining 2 hours 5 minutes of
hearing time should be reduced to 2 hours for allowance under fee item 14(a) at
the minimum 2 units per hour. Nothing should be allowed for fee item 15 as the
Respondent’s written submissions were non-responsive and exceeded the
parameters of the Court’s direction. Nothing should be assessed for the
Respondent under fee item 26 and instead 2 units should be awarded to the Appellant
further to Rule 408(3) because the Respondent advanced several exaggerated and
inappropriate claims and failed to act reasonably in the face of the
Appellant’s proposed settlement of $1,600.
(3) Assessment
[8]
I
concluded in paragraph 7 of Starlight v. Canada, [2001] F.C.J. No. 1376
(A.O.) that the same point in the ranges throughout the Tariff need not be used
as each item for the services of counsel is discrete and must be considered in
its own circumstances. As well, broad distinctions may be required between an
upper versus lower allowance from available ranges. The Court’s decision
confirms that the Respondent had to prepare for three distinct cases and
therefore in the circumstances of single fee items 2 and 13(a) claims, I allow
7 and 4 units respectively.
[9]
Paragraph
102 of Abbott above indicates that I do not agree with the Appellant’s
position concerning fee item 14 calculations. The restriction in Tariff B2(2)
prevents the allocation of a fraction of a unit to a service. Once the
allocation for fee item 14(a), i.e. 2 or 3 units, has been made, Tariff B2(2)
does not prohibit fractions of hours for the duration of the hearing possibly
because it would not be reasonable to preclude an assessment officer’s
flexibility in addressing hearings, for example, with a duration of 15 minutes
or which extend 15 minutes beyond an exact number of hours. I allow 2.65
hours at 2 units per hour. I am satisfied that the circumstances associated
with fee item 15 warrant a mid-range allowance of 5 units.
[10]
Inexplicably,
the Respondent’s bill of costs did not include disbursements which instead were
listed as part of a supporting affidavit. Although I reject the Appellant’s
request for costs of the assessment, I think that the Respondent’s
approach somewhat complicated the process and I therefore allow the
minimum 2 units for fee item 26.
B. Disbursements
Disbursements
to Dye & Durham for service and filing of documents ($281.46); Dynamex and
Priority Post to courier documents ($103.64); Quicklaw ($296.15) and Cettec Digital
Imaging for photocopying and binding ($1,633.99)
(1) The Appellant’s Position
[11]
The
Appellant argued that nothing should be allowed because of the lack of evidence
of relevance and reasonableness. Alternatively, only $16.96 should be allowed
for Dye & Durham as Rule 140 permits non-personal service by regular
mail. As well, some of the invoices relate to orders denying costs and an
amount ($24.61) is claimed twice for the same invoice. Regular mail or
facsimiles were reasonable alternatives to couriers. As the evidence does not
establish relevance for several of the courier invoices and indicates that some
could be associated with an order silent on costs, only $1.56 should be
allowed.
[12]
The
Appellant argued that nothing should be allowed for computer research and
photocopying because the evidence does not establish purpose, relevance,
necessity, or reasonableness. Although Carlile above recognizes that
sensible approximation may be necessary to preclude absurd results, the
disorganization and vagueness of the Respondent’s materials precludes that. The
Respondent cannot properly add GST to the total for disbursements.
(2) Assessment
[13]
The
proof here was vague in some areas. I allow reduced amounts for Dye &
Durham ($185); couriers ($75); Quicklaw ($205) and photocopying/binding
($1,250). The Excise Tax Act requires third party service providers such
as Durham & Dye to bill for GST. Part of my considerations in Englander
v. Telus Communications Inc., [2004] F.C.J. No. 440 (A.O.) addressed GST as
an indemnity. I am not convinced on the record that the Respondent was liable
for GST claimed on counsel fees. I disallow the GST on counsel fees. The
Respondent’s bill of costs, presented at $4,197.60, is assessed and allowed at
$5,111.00.
III. Federal Court of Appeal File
A-421-06
A. Counsel
Fees
Items
19 (memorandum of fact and law / available range = 4 – 7 units) claimed at 5
units;
22(a)
(attendance at hearing / 2 – 3 units per hour) claimed at 2 units per hour for
2 hours; and
26
(assessment of costs / 2 – 6 units) claimed at 2 units
B. Disbursements
Disbursements
totalling $1,059.77 claimed for service and filings; computer research;
photocopying and binding
(1) The Respondent’s Position
[14]
The
Respondent argued that the costs were moderate for a proceeding of average
complexity. The Respondent countered the Appellant’s position concerning a book
of authorities by arguing that the Appellant was made aware of the nature
of the work. The Respondent did not amend the bill of costs, but did add via
supporting materials two invoices ($18.02 and $31.80) for filing of documents.
(2) The
Appellant’s Position
[15]
The
Appellant argued that fee item 19 should be restricted to the minimum 4 units
because the memorandum of fact and law was essentially a reproduction of the one
used in the Federal Court Matters. As above for item 14(a), the hearing
duration used for the item 22(a) calculation should be reduced to 1 hour. As
above, the Appellant should be awarded costs (2 units) of the assessment.
Further to MacDonald v. Canada (A.G.) 2006 FC 1068 (A.O.), the
Respondent cannot claim GST for counsel fees.
[16]
As
above, the Appellant argued that the disbursement claims should be sharply
reduced because regular mail or facsimiles were viable alternatives for the
delivery of documents. Several items relate to the order dated December 6,
2006, which directed that there “be no costs of this motion.” Further to Rule
400(3)(k) (unnecessary or negligent conduct), the Appellant should not
be responsible for costs associated with missed deadlines, i.e. the
consent to extend time to file the memorandum of fact and law. Collation of
documents ($49.80) is overhead and not assessable. Nothing should be allowed
for the costs ($3.00 and $724.81) associated with the Respondent’s book of
authorities because the record indicates that it was unnecessarily duplicative
of the Appellant’s materials.
[17]
The
Appellant argued that the added claims via the supporting materials rather than
an amended bill of costs did not meet the threshold of Seiveright (c.o.b. Bev’s
Pets ‘N’ Gifts) v. D. & A.’s Pet Food ‘N More Ltd., [2005] F.C.J. No.
1056 (A.O.), i.e. that a bill of costs may be amended only if the opposing
party has sufficient opportunity to respond to the changes. Alternatively,
regular mail ($0.52) was sufficient in place of the charge ($18.02) for service
of the bill of costs. For the reasons above, the charge ($31.80) for the book
of authorities should be denied.
(3) Assessment
[18]
The
Federal Court of Appeal decision was brief. That case preparation here was likely
not difficult did not relieve the need for diligence on the part of counsel for
the Respondent. I allow the 5 units claimed for fee item 19. The hearing, which
began at 2:00 p.m. and concluded at 3:30 p.m., included a break of 20 minutes
during which the Court deliberated and then reconvened to deliver its decision.
I think that 1.75 hours for the fee item 22(a) calculation is appropriate. I
allow the minimum 2 units claimed for fee item 26. As above, I disallow the GST
claimed for counsel fees.
[19]
Although
the proof of disbursements is somewhat problematic, I disagree with elements of
the Appellant’s position. For example, the order dated December 6, 2006
extended the deadline for the filing of the Respondent’s Notice of Appearance.
The charge ($17.49) associated with filing it was a direct consequence of said
leave, but was not in any way a cost of the motion within the parameters of the
denial of costs in the order. In other words, the event of the motion was
mutually exclusive of the event of the Notice of Appearance. The matter of a
cheaper alternative to the $17.49 is a different issue. I considered such
issues in Aduvala v. Canada, 2008 D.T.C. 6523, F.C.J. No. 1055 (A.O.). I
conclude that $925.00 is a reasonable total for disbursements.
[20]
The
Respondent’s bill of costs, presented at $3,476.57, is assessed and allowed at
$2,305.00.
“Charles
E. Stinson”
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