Date: 20060829
Docket: A-244-05
Citation: 2006 FCA 286
BETWEEN:
RICHARD CONDO
Appellant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
This
appeal, from a decision of the Federal Court dismissing the Appellant’s
application for judicial review of a decision of the Appeal Division of the
National Parole Board which had concluded that he should be detained until the
expiry of his sentence as an inmate in a federal penitentiary, was dismissed
with costs. I issued a timetable for written disposition of the assessment of
the Respondent’s bill of costs.
I. The Respondent’s Position
[2]
The
Respondent argued that the claimed total of $3,548.46 for costs is reasonable
and fair given certain factual underpinnings (the Appellant’s conviction for
kidnapping and brutal assault of his former wife and the expressed concerns for
the safety of his counsel in this matter, who also is his current wife, given
documented failures by her to report incidents of violence) and given the
Court’s disposition of this litigation. The Respondent’s conduct does not
warrant any reduction, further to Rules 409 and 400(3) factors, of the maximum
amounts claimed for counsel fees necessary to address confusing and voluminous
facts and the associated numerous issues. The liaison by the Respondent’s
counsel with opposing counsel to ensure the correct contents of the appeal book
justifies the 1 unit ($120.00 per unit) claimed under item 18 for its
preparation. The Record, four volumes and some 973 pages, together with the
need for extensive review and organization of legal precedents, justifies the
maximum 7 units claimed for item 19 (memorandum of fact and law). It follows
that the maximum 3 units per hour claimed for items 22(a) and (b) (appearance
of lead and second counsel respectively at the hearing) are justified. The work
by counsel after judgment, i.e. reporting to the client and other
administrative matters, justifies the 1 unit claimed for item 25 (services
after judgment). The preparation for and carrying through of the assessment of
costs justifies an exercise of Rule 408(3) discretion for 3 units under item
26.
II. The Appellant’s Position
[3]
The
Appellant conceded that there were a few discussions between counsel concerning
the appeal book contents but argued that, as it was the Appellant who actually
prepared it and made all copies, the Respondent cannot claim for item 18. The
item 19 allowance should only be 1 unit given that the factum was, with minor
exceptions, essentially identical to that used in the Federal Court. This
litigation warranted only one counsel for the hearing at the minimum 2 units
per hour for item 22(a). Item 25 should not be allowed as preparation of the
bill of costs, the only work occurring after judgment, does not justify the
$120.00 claimed. Online computer research charges are not permissible
disbursements and were excessive, having been incurred as individual charges as
opposed to the less costly monthly flat rate regardless of the number of
searches.
III. Assessment
[4]
The
decision under appeal (dated May 30, 2005, in Federal Court file T-129-05)
commented at pages 2-3:
I should add that the practice of
counsels putting themselves in a position of acting as both counsel and witness
in the same case should be discouraged. Despite the absence of a conflict of
interest, it was at the very least awkward and inappropriate for the applicant
to rely on his counsel oral representations made on her own behalf as the
applicant’s wife before the National Parole Board.
Paragraph [59] of the Reasons in this Court
read:
One final point. In view of Mr. Justice
MacPhee’s remarks concerning the appellant’s relationship with Ms. Magas and
the fact that she was at the centre of some of the events that form the factual
foundation to this appeal, I have serious doubts as to whether Ms. Magas should
have appeared either before the Federal Court or before us on behalf of the
appellant. I voiced this concern to Ms. Magas at the end of the hearing and I
trust that she will give my remarks serious consideration, should she again be
tempted to appear on behalf of the appellant in related matters.
[5]
The
Appellant’s solicitor of record is Magas Law Office with Diane [my
emphasis] Magas as responsible counsel, the same Diane Magas who was the
subject of certain factual matters relevant in the substantive issues of this
litigation. The materials led before me, in response to my directions, came
from Condo Law Office with Diane [my emphasis] Condo as responsible
counsel. The mailing address, telephone and facsimile numbers are identical for
both Magas Law Office and Condo Law Office, and that coupled with the same
first name for responsible counsel and the fact that the first word of the
title, Condo Law Office, coincides with the surname of the Appellant, indicates
to me that the Appellant’s wife finds it convenient to ignore the Court’s
serious caveat concerning appropriate conduct by counsel.
[6]
I
do not wish to be seen as condoning a practice frowned upon in both courts.
However, I note that the Appellant’s counsel did not attempt to argue that the
costs should be minimal because the circumstances here of an inmate, for whom
the record clearly established serious misconduct on several fronts relative to
spousal relations, seeking certain parole considerations were not so serious as
to warrant maximum costs. That might have caused me to speculate on her
objectivity or diligence as an officer of the court, pursuant to the Federal
Courts Act, s. 11(3), in bringing all relevant matters to my attention as
the decision-maker in this assessment of costs, given her personal involvement
in certain factual circumstances underlying this litigation. She did not,
instead confining herself to objections somewhat technical in nature. Her submissions
were rational and succinct, although I did not necessarily agree with all of
them. I saw no reason at this late stage to adjourn this matter to require
replacement counsel: in my view, the record was sufficient for my conclusions
on the appropriate assessed amounts of costs.
[7]
I
concluded at para. [7] in 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. I allow
the item 18 claim as I routinely do for successful respondents because the
opposing sides in litigation both have serious obligations in ensuring the
proper content of appeal books: see Actra Fraternal Benefit Society v.
Canada, [2000] F.C.J. No. 1214 (A.O.). Relative to item 19, I agree that
there was some duplication of effort, but I think the work by counsel in responding
to an application for judicial review is different in nature from the sort of
work required to frame the response to the appeal from the decision dismissing
said application: see para. [10] of the Court’s decision outlining the issues
in this appeal. The Column I result of 1 unit, suggested by the Appellant’s
counsel, is beyond my jurisdiction. The Court referred to the statutory duty of
provincial parole boards to hold the protection of society as the paramount
consideration in the determination of any case. The Court then carefully
considered the factual circumstances underlying this litigation. Those included
assault (as held by MacPhee J.), in a courthouse, of the lawyer for the former
wife of the Appellant. The maximum 7 units are warranted for item 19, which I
allow. I allow item 22(a) at the maximum 3 units per hour.
[8]
The
Federal Courts Act, s. 3 and 5(1) defining the Federal Court of Appeal,
and Rule 2 of the Federal Courts Rules defining an assessment officer,
mean that the terms “Court” (as used in item 22(b) to require a direction of
the Court for costs of second counsel) and “assessment officer” refer to
separate and distinct entities. The Court did not visibly direct that the
Respondent recover the costs of second counsel, meaning that I have no
jurisdiction to allow them. I routinely allow item 25, as I will do here,
unless I think that responsible counsel would not have reviewed the judgment
and explained its implications to the client. I allow the 3 units claimed for
item 26.
[9]
My
decision in Englander v. Telus Communications Inc., [2004] F.C.J. No.
440 (A.O.) confirms that I routinely allow costs for online computer research.
However, that process includes consideration of whether all, none or only part
of the research was reasonably necessary or irrelevant, i.e. some of the
searches may extract cautionary or secondary authorities, keeping in mind the
professional obligation of counsel both to the client for diligent
representation and to the Court for as much assistance as reasonably possible
on all aspects of the law potentially affecting final adjudication on the
substantive issues of the litigation. My view, often expressed further to my
approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284
(T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased)
(1974), 3 All. E.R. 603 at 608, that assessment of costs is “rough justice, in
the sense of being compounded of much sensible approximation”, is that
discretion may be applied to sort out a reasonable result for costs equitable
for both sides. I think that my view is reinforced by the editorial comments
(see: The Honourable James J. Carthy, W.A. Derry Millar & Jeffrey G. Gowan,
Ontario Annual Practice 2005-2006 (Aurora, Ont: Canada Law Book, 2005))
for Rules 57 and 58 to the effect that an assessment of costs is more of an art
form than an application of rules and principles as a function of the general
weight and feel of the file and issues, and of the judgment and experience of
the assessment officer faced with the difficult task of balancing the effect of
what could be several subjective and objective factors. In Almecon
Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 (A.O.) at para.
[31], I found certain comments in the evidence, although self-serving, nonetheless
to be pragmatic and sensible concerning the reality of a myriad of essential
disbursements for which the costs of proof might or would exceed their amount.
However, that is not to suggest that litigants can get by without any evidence
by relying on the discretion and experience of the assessment officer. The
proof here is less than absolute, i.e. the absence of the parameters for each
instance of research. The paucity of evidence of the circumstances underlying
each expenditure makes it difficult for the respondent on the assessment of
costs and the assessment officer to satisfy themselves that each expenditure
was incurred as a function of reasonable necessity. The less that evidence is
available, the more that the assessing party is bound up in the assessment
officer’s discretion, the exercise of which should be conservative, with a view
to a sense of austerity which should pervade costs, to preclude prejudice to
the payer of costs. However, real expenditures are needed to advance
litigation: a result of zero dollars at assessment would be absurd. I find the
three amounts claimed, i.e. $13.55, $3.20 and $60.50, reasonable in the
circumstances of this litigation and allow them as presented.
[10]
The
Respondent’s bill of costs, presented at $3,548.46, is assessed and allowed at
$3,278.46.
“Charles
E. Stinson”
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