Date: 20100624
Docket: A-202-08
Citation: 2010 FCA 173
BETWEEN:
MOIRA-EILEEN
DROSDOVECH
Appellant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Court dismissed with costs this appeal of a decision of the Tax Court of Canada
concerning insurability and pensionability of one’s employment. I issued a
timetable for written disposition of the assessment of the Respondent’s bill of
costs.
[2]
The
Appellant filed a reply document which could be described as unfocused, but
which I perceive as general opposition to the bill of costs. It includes
this passage under the subheading – Motion To Stay Taxation Determination
–: “the Appellant motions that the Senior Assessment Officer and/or this Court
stay its decision on Taxation of the Respondent’s Bill of Costs and to direct
the Respondent to abandon its Notice of Taxation.” This is not in accord with
the Rules for relief from the Court.
[3]
However,
to the extent that the reply document requests a stay or direction for
abandonment by my hand, I note that any such jurisdiction falls to the Court. I
am not the “Court” as that term is used in the Federal Courts Rules: see
Sander Holdings Ltd. v. Canada (Minister of Agriculture), [2009] F.C.J.
No. 720 (A.O.) and Marshall v. Canada, [2006] F.C.J. No. 1282 (A.O.) [Marshall]. The
Appellant misconceives the role of an assessment officer: see para. 3 of Marshall above which
summarizes the parameters and practice for an assessment of costs.
[4]
Effectively,
these circumstances are as if the Appellant had advanced no materials given the absence
of any relevant representations which could have assisted me in identifying
issues and making a decision. My view, often expressed in comparable
circumstances, is that the Federal Courts Rules do not contemplate a
litigant benefiting by having an assessment officer step away from a neutral
position to act as the litigant’s advocate in challenging given items in a bill
of costs. However, the assessment officer cannot certify unlawful items, i.e.
those outside the authority of the judgment and the tariff. I examined
each item claimed in the bill of costs and the supporting materials within
those parameters.
[5]
My
findings in Halford v. Seed Hawk Inc. (2009), 69 C.P.R. (4th)
1, [2006] F.C.J. No. 629 (A.O.), 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), 64 C.P.R. (4th) 475,
[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]
set out my views on the threshold of proof for categories of costs and approach
to their assessment. Paragraphs 68 to 72 inclusive of Abbott above
summarize the subjective elements and the notion of rough justice in
assessments of costs. In paragraphs 38 to 40 of Aventis Pharma Inc. v.
Apotex Inc., [2009] F.C.J. No. 56 (A.O.) [Aventis 2009], I
reinforced my view that an assessment of costs should reflect the reality of
the demands of litigation. I endorse the practical approach in paragraph 69 of Merck
& Co. v. Canada (Minister of Health), [2007]
F.C.J. No. 428 (A.O.) aff’d on its points and others, but varied on others
[2007] F.C.J. No. 1337 (F.C.). Paragraph 14 of Merck & Co. v. Apotex
Inc. (2009), 73 C.P.R. (4th) 423, [2008] F.C.J. No. 1656
(F.C.A.) held that “in view of the limited material available to
assessment officers, determining what expenses are “reasonable” is often
likely to do no more than rough justice between the parties and inevitably
involves the exercise of a substantial degree of discretion on the part of
assessment officers.” This practice of rough justice does not however
require an assessment officer to approve any and all claimed items of costs
without question. Disallowances or reductions often occur. I have generally
held that a paucity of evidence may result in conservative allowances.
[6]
The
total amount claimed in the bill of costs is generally arguable as reasonable
within the limits of the award of costs and is allowed as presented except for
one item in the photocopying claim of $1,149.86 which requires my intervention.
Judgment was rendered on February 25, 2009. On April 9, 2009, the Court denied
the Appellant’s motion for an extension of time (the extension motion) for
reconsideration of the judgment and awarded lump sum costs of $200 to the
Respondent. Invoice no. 24691 dated 17/03/2009 for $65.94 refers to the
copying, collation and binding of 31 originals into sets or books. The
Respondent’s motion record filed March 20, 2009 in reply to the extension
motion was that length. I am not satisfied on the evidence that the lump sum
award of $200 does not account for this $65.94 and I therefore remove this
latter amount from the assessed total.
[7]
The
bill of costs includes the $200 lump sum award presumably for convenience in
collecting all heads of costs within a single document for ease of reference
and to preclude confusion during execution. However, that is not a function of
an assessment officer. The lump sum award is already capable of execution
without the necessity of forming part of my certificate of assessed costs.
Form 425A (Writ of Seizure and Sale) permits, in my opinion, such a collection
within a single document of the various judgment sums including costs for the
purpose of execution. I therefore exclude the $200 from my assessed total.
[8]
The
Respondent’s bill of costs, presented at $3,312.99, is assessed and allowed at
$3,047.05.
“Charles
E. Stinson”
Vancouver,
BC
June 24,
2010
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