Date: 20060425
Docket: A-631-04
Citation: 2006 FCA 149
BETWEEN:
G. LEE MACMILLAN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1] A copy of these Reasons is filed today in Federal Court file T-1301-04 (G. Lee MacMillan) and applies there accordingly. On July 5, 2004, the Applicant in T-1301-04 (hereafter the Applicant (T-1301-04)), representing himself, filed an application for judicial review of the May 31, 2004 decision of the Minister of National Revenue (hereafter the Minister) to deny his request for a second level review relative to discretion exercised in the Minister's March 12, 2004 decision regarding the Fairness Provisions of the Income Tax Act, R.S.C. 1985, c. 1. The record discloses some indecision on the part of the Applicant (T-1301-04) on whether to proceed, but he did.
[2] The Applicant (T-1301-04) attempted to gain the substantive relief in his proceeding for judicial review by way of an interlocutory application, to which the Federal Court responded on November 18, 2004:
Upon motion in writing on behalf of the applicant for an Order that the application made by the applicant for judicial review be allowed.
ORDER
Considering that the applicant seeks the same relief in this motion as he does in his underlying application for judicial review; and
Considering that the applicant has not even filed an applicant's record yet in respect of his application for judicial review;
The motion is dismissed on the ground that the applicant has failed to comply with the requirements of Rule 300 et seq. of the Federal Court Rules, 1998 which require that, inter alia, an Application Record be filed and a Requisition for Hearing be made.
Costs against the applicant.
The instituting document (A-631-04) by which the Applicant (T-1301-04) appealed said order asserted that the Federal Court had denied his application for judicial review with costs to the Appellant. That assertion, as was the case with several elements of the conduct by this lay litigant of his litigation, is incorrect. The Federal Court did not in fact consider the substantive issues of the judicial review and instead simply dismissed an interlocutory application in the course of the proceeding for judicial review as premature. Further, costs were not awarded to the Applicant (T-1301-04), but against him.
[3] The record in the Federal Court discloses certain deficiencies in the conduct by the Applicant (T-1301-04) of his litigation finally culminating in his application to extend time to file his application record for the judicial review. The order dated July 8, 2005 noted the Respondent's assertion of a lack of opposition to the time extension, but indicated that did not relieve the Court of its onus to determine whether the Applicant (T-1301-04) was entitled by law to such interlocutory relief and of its onus to control its process and the respect for its rules of procedure. Said order then detailed the faults and inadequacies of his conduct of his litigation and commented at page 3:
... In ending, I would note that whilst the Applicant makes much, in his representations, of his status as a self-represented litigant, there is ample authority for the proposition that self-represented litigants have no additional rights and are entitled to no special treatment by virtue of being self-represented. As stated by Hugessen J. in Scheuneman v. Her Majesty the Queen, 2003 FCT 37: "The Plaintiff's lack of legal training does not give him any additional rights and if he insists upon representing himself, he must play by the same rules as everyone else". See also Kalevar v. Liberal Party of Canada, 2001 FCT 1261. In the same way, settlement discussions, or hopes of an alternate resolution are not necessarily an excuse to justify non-compliance with the rules (Jazz Inspiration Ltd. v. Canada(Attorney General), [1995] F.C.J. No. 1134)....
The Court then dismissed the motion for an extension of time and the underlying application for judicial review, both without any mention of costs. The record discloses that the Applicant (T-1301-04) was not pleased.
[4] While the events in the Federal Court were unfolding, the Appellant in A-631-04 (hereafter the Appellant (A-631-04)) led a motion for an interim injunction to restrain the Minister from taking further action on the matters underlying the judicial review until disposition by the Federal Court. By letter dated March 24, 2005, the Respondent requested a delay in disposition of said motion because of an outstanding settlement proposal which could resolve the litigation. The Court indicated that the Respondent's request should have taken the form of a motion, but did in that one instance delay disposition. The record discloses that the Appellant (A-631-04) was not pleased. By letter dated May 18, 2005, the Appellant (A-631-04) asserted discontinuance of his motion for injunction and of his appeal. The Court directed that said letter be filed as a notice of discontinuance.
[5] I issued timetables for written disposition of the Respondent's bill of costs in each matter (Rule 402 applying further to the discontinuance in A-631-04). The Respondent generally claimed costs at the mid-point of Column III ranges in both files. The Appellant (A-631-04) continued the pattern of flawed materials, i.e. attributing a claim for $600.00 in T-1301-04 to a motion claimed in A-631-04. As well, he misconceives the scope of an assessment of costs by seeking an order of ex turpi cuae non oritur action [sic] (should read actio) (the principle precluding an action or enforcement founded on a consideration contrary to the public interest). Regardless, I take from his submissions a general opposition to both bills of costs.
[6] The bill of costs in A-631-04 claims $360.00 under item 21(a) for the motion for an interim injunction. Contrary to the Appellant's (A-631-04) assertions, Rule 402 clearly allows costs to a party against whom a motion has been abandoned. I therefore allow the $360.00. This leaves item 25 ($120.00 for services after judgment), item 26 ($480.00 for assessment of costs) and photocopies of authorities ($35.00), all of which I consider modest in the circumstances. This excerpt from Rule 402, "... entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given...", if given a broad reading, would permit an item 25 claim, which I allow here in addition to the other claimed items.
[7] The Respondent is entitled to the $600.00 claimed under item 5 in the bill of costs in T-1301-04 for the November 18, 2004 interlocutory order, plus disbursements. The silence on costs in the July 8, 2005 order precludes a claim by the Respondents for costs at large of the proceeding, i.e. such as for item 25 ($120.00), which I therefore disallow. I allow item 26 as presented at $480.00. The amount of $147.00 claimed for photocopies could address material beyond the scope of the November 18, 2004 order: I allowed a reduced amount of $105.00.
[8] The Respondent's bill of costs in Federal Court file T-1301-04, presented at $1,347.00, is assessed and allowed at $1,185.00. The Respondent's bill of costs in Federal Court of Appeal file A-631-04 is assessed and allowed as presented at $995.00.
"Charles E. Stinson"
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