Wagg v. Canada, 2006 FCA 2

Date: 20060105

Docket: A-248-02

Citation: 2006 FCA 2

BETWEEN:

                                                        DAVID ALFRED WAGG

                                                                                                                                            Applicant

                                                                         - and -

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                This application for judicial review, addressing a notice of reassessment under the Excise Tax Act, R.S.C. 1985, c. E-15, was dismissed with costs. I issued a timetable for written disposition of the Respondent's bill of costs. The Applicant's submissions were not on point. The Respondent's materials included correspondence advising the Applicant that the Respondent would seek costs under item 26 additional to the draft bill of costs if this matter had to proceed to an assessment of costs.

[2]                Effectively, the absence of any relevant representations by the Applicant which could assist me in identifying issues and making a decision leaves the Respondent's bill of costs unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, ie. 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.

[3]                In the circumstances of this litigation, the claims for counsel fee items are generally arguable within the limits of the award of costs. However, certain things warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs. Specifically, the Respondent asks for the addition of item 26 (assessment of costs) as a function of the need to take this matter to assessment. Item 26 is a global allowance which includes preparation and either appearance on the oral hearing of the assessment or written submissions as here addressing the consideration of the bill of costs itself. Item 26 is not intended as a penalty should litigants choose to exercise their right to challenge a bill of costs via the assessment process. Here, the Respondent did have to carefully prepare materials supporting the bill of costs. However, the reply materials on the part of the Applicant were clearly misdirected in focus and that means that little rebuttal effort was required. I allow the minimum 2 units. Item 14(a) (attendance at hearing) is claimed at the maximum 3 units per hour for 2 hours. The Court record indicates that the hearing lasted 45 minutes. I allow one hour at 3 units per hour. The disbursement subtotal of $274.98 is modest, which I allow.

[4]                The Respondent's bill of costs, presented at $2,364.98, is assessed and allowed at $2,254.98.

(Sgd.) "Charles E. Stinson"

       Assessment Officer             

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-248-02

STYLE OF CAUSE:                          DAVID ALFRED WAGG

- and -

HER MAJESTY THE QUEEN

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE

OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                     CHARLES E. STINSON

DATED:                                                                                  January 5, 2006

SOLICITORS OF RECORD: