Makaruk v. Canada (Attorney General), 2005 FCA 265

Date: 20050728

Docket: A-143-03

Citation: 2005 FCA 265

BETWEEN:

                                                             ADAM MAKARUK

                                                                                                                                            Applicant

                                                                         - and -

                                                     THE ATTORNEY GENERAL

                                                                   OF CANADA

                                                                                                                                        Respondent

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                A copy of these reasons is filed today in court file A-144-03 (Jean Makaruk v. The Attorney General of Canada) and applies there accordingly. Each Applicant sought judicial review of decisions of the Tax Court of Canada concerning net income calculations for their business. The Court dismissed both applications for judicial review with one set of counsel fees, but disbursements for each matter, to the Respondent. I issued a timetable for written disposition of the Respondent's bill of costs.

[2]                The Applicants' submissions reiterated the Court's reasons, ie. that their stipulations before the Tax Court of Canada precluded them from advancing a challenge in this Court, and argued that the Respondent therefore had incurred unnecessary costs given that it was obvious from the beginning that their applications for judicial review could not succeed. They noted that the Respondent rejected their offer to settle at approximately one-half of the claimed costs. The Respondent argued that the claimed fees and disbursements are reasonable for this litigation within the parameters of the Rules and Tariff. Further, given that it was necessary to proceed with an assessment, item 26 (assessment of costs), claimed at 3 units in the bill of costs, should be increased to the maximum 6 units.

Assessment

[3]                My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (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, On: 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.

[4]                Although the Respondent was faced here with two discrete matters, the disbursement of $2,086.80 for copying and binding services could seem high. The proof is less than absolute in that the subject document is not always identified. However, I can generally infer from the litigation events which documents the invoices addressed. There appears, for at least one instance, to have been an extra copy made beyond the ordinary requirements for service, filing and retention in the law firm's file. I have adjusted the allowance for this item down to $1,850.00. Details underlying the rationale for on-line searches are absent. I reduced the $374.46 claimed to $165.00. Courier and transcript claims are allowed as presented at $54.91 and $520.80 respectively.

[5]                In the circumstances of this litigation, the claims for counsel fee items at varying points in the available ranges are generally arguable within the limits of the award of costs and are allowed as presented. I reject the Respondent's premise concerning the process of 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, such as the Applicants here, choose to exercise their right to challenge a bill of costs via the assessment process. In the circumstances here, I restrict the Respondent to the 3 units claimed.

[6]                The bill of costs of the Respondent as it relates to both Applicants, presented at $5,621.97, is assessed and allowed at $5,175.71.

(Sgd.) "Charles E. Stinson"

     Assessment Officer             

Vancouver, BC

July 28, 2005

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-143-03

STYLE OF CAUSE:                          ADAM MAKARUK

- and -

THE ATTORNEY GENERAL OF CANADA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                     CHARLES E. STINSON

DATED:                                                                                  July 28, 2005

SOLICITORS OF RECORD: