Date: 20050718
Docket: A-18-04
Citation: 2005 FCA 260
BETWEEN:
ERNST ZUNDEL
Appellant
and
THE SOLICITOR GENERAL OF CANADA and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to a judgment dated April 1, 2004, by the Court of Appeal. The Court of Appeal granted the Respondents' motion to amend the style of cause and granted with costs the Respondents' motion to quash the Appellant's appeal from the designated judge's decision not to disclose additional information. In addition, within this judgment, the Court of Appeal dismissed with costs the Appellant's motion to stay the review of the security certificate pending his appeals at the Ontario Court of Appeal and the Federal Court of Appeal.
[2] On October 29, 2004, the Respondents filed a Bill of Costs regarding this Court of Appeal judgment as well as supporting material for the assessment. On the same date, the Respondents filed additional Bills of Costs regarding file DES-2-03 and the associated proceeding in file A-534-04.
[3] After discussions with the parties, a joint timetable was issued for the filing of all supporting materials regarding file A-18-04 as well as DES-2-03. All the supporting material was submitted within the time frames by the respective parties. For reasons of simplicity, I have decided to deal with each of these matters separately, notwithstanding my previous timetable direction which allowed for the filing of supporting material in respect of both Bills of Costs.
Appellant's Position
[4] The Appellant requests the maximum units of the assessable services claimed by the Respondents under Tariff B, Column III of the Federal Courts Rules be reduced since there is no justification for these amounts. In particular, the Appellant submits "...the travelling claim of five hours between Toronto and Ottawa is excessive." Inadvertently, it appears that the Appellant may be referring to the Respondents' Item 24 - Travel by Counsel to attend Motions and preparation of further submissions (M. Rodych, T. Hoffman - hotel accommodations January 23, 24, 27) as 5 hours not 5 units. However, I do understand the Appellant's argument on this latter point. In addition, the Appellant submits the Bill of Costs is simple and the "...claim of six hours for its preparation is excessive in the extreme. I note the Appellant may have inadvertently substituted the word "hours" when he may have meant "units" and I have also taken this argument into consideration. The Appellant objects to the one unit claimed for Item 25 (Services after judgment not otherwise specified) and requests it be disallowed since this was an interlocutory matter and the assessable service claimed "... does not apply as no judgment was pronounced." With regards to the Respondents' disbursements, the Appellant submits a disbursement "...of over $1,000 for copying of brief of Authorities is excessive..." and should be reduced.
Respondents' Position
[5] The Respondents' submit this proceeding was extremely complex and required a specialization of litigation concerning national security certificates. In addition, the Respondents' note the two senior counsel assigned to this file were very experienced which, considering the complexity issue mentioned above, justifies their request for the maximum units allowed for the assessable services claimed. The Respondents note their claim of 5 units for Item 24 includes hotel accommodations during the hearing of the motion on January 28, 2004 and therefore, $550.00 is not excessive. However, I must note there are no disbursements claimed for hotel accommodations in this proceeding. With regard to Item 26 (Assessment of Costs), the Respondents outline the varied steps taken to prepare and confirm the costs associated with this Bill of Costs and submit this justifies the 6 units claimed for this assessable service. The Respondents note the concern of the Appellant for the amount claimed for the Brief of Authorities but argue these photocopy costs were for multiple photocopy invoices for the various motions and the associated documents submitted for this proceeding.
Assessment
[6] In assessing this Bill of Costs, I have relied on the reasons in Bruce Starlight et. al. v. Her Majesty the Queen, [2001] F.C.J. 1376 and take the same viewpoint that "...each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation." In addition, I have relied on the Rule 400(3) of the Federal Courts Rules which allows me to consider a number of factors when awarding costs. I have reviewed all the pertinent materials in the record and have summarized only those issues which are relevant for the disposition of this assessment in A-18-04.
[7] The parties have made their respective submissions on the issue of the maximum number of units claimed for the assessable services. The Respondents have claimed the maximum 5 units ($550.00) for the Item 13.(a)(Preparation for hearing; including correspondence and preparation of books of authorities) in the Bill of Costs. There are a number of procedural steps that must be undertaken in any proceeding of this nature and a review of the court file record confirmed that at least two of these steps had been taken such as the filing of the Joint Appeal Books Agreement and the Appeal Books. For these reasons and considering Bruce Starlight et. al. v. Her Majesty the Queen, supra, I allow a reduced 4 units ($440.00) for this assessable service.
[8] With respect to the Respondents' Item 21.(a) - Preparation and filing of Motion to Quash Appeal, Item 21.(a) - Preparation and filing of Reply to Appellant's Motion to Stay Inquiry, Item 21.(b) - Attend Court of Appeal for hearing of motions (January 28, 2004) and Item 15 - Preparation and filing of further argument and reply, in accordance with Order of the Court, the Respondent has claimed 3 units ($330.00), 3 units ($330.00), 12 units ($1,320.00) and 7 units ($770.00) respectively for each of these assessable services. It is appropriate in these circumstances that I outline and rely on Rule 400(3) of the Federal Courts Rules regarding these assessable services.
Rules 400(3)(a), (c), and (g):
Factors in awarding costs
(3) In exercising its discretion under subsection (1), the Court may consider
(a) the result of the proceeding; ... (c) the importance and complexity of the issues; ... (g) the amount of work; ...
Considering the factors such as complexity, the amount of work involved and the result of the hearing, I allow all 25 units ($2,750.00) for these assessable services.
[9] The Respondents' in their Bill of Costs have claimed 5 units ($550.00) for Item 24 - Travel by Counsel to attend Motions and preparation of further submissions (M. Rodych, T. Hoffman - hotel accommodations January 23, 24, 27). Item 24 of Tariff B of the Federal Court Rules, actually reads:
24. Travel by counsel to attend a trial, hearing, motion, examination or analogous procedure at the Direction of the Court.
I rely on the reasons in Beaulieu v. Canada, [2000] F.C.J. 2127 at paragraph 10:
... In item 24 of the bill of costs the respondent claimed the sum of $500 for travel by counsel. In her written submissions in reply Ms. Lavergne was prepared to reduce this amount to $100. At the same time, the appellant based her objection on the phrase "at the discretion of the Court" contained in item 24, which she submitted did not extend to the assessment officer where no specific directions to that effect had been given. The appellant is correct: only judges have the discretionary authority to compensate counsel for travel. (emphasis mine)
I have reviewed the material in the Court record and have determined that no such direction exists, therefore Item 24 is disallowed.
[10] The Appellant has objected to Item 25 (Services after judgment not otherwise specified) and submits this assessable service should be disallowed since the matter before the Court of Appeal was interlocutory in nature and no judgment was pronounced. I view this submission as rather narrow in focus since the relief sought in one of the interlocutory matters was to quash the Appellant's appeal which in effect ended this proceeding. In addition, a common sense approach leads me to believe that it is reasonable that a party would have some tasks to complete for their client after such a decision had been rendered. In this proceeding, the Respondents sought payment from the Appellant for their awarded court costs as a preliminary step before filing a Bill of Costs which in my opinion entitles them to claim Item 25. For these reasons and specific to these circumstances, I allow the 1 unit ($110.00) for this assessable service.
[11] This assessment of the Bill of Costs has proceeded by way of written submissions. It is my respectful opinion they were simple in nature and the parties did participate in the filing of materials which did assist me in the assessment of this Bill of Costs. However, I conclude a more modest amount is appropriate for this assessable service and I reduce Item 26 (Assessment of costs) to 2 units ($220.00) for reasons I have outlined in the first two sentences of this paragraph.
[12] The Appellant has objected specifically to some of the photocopying disbursements for the Respondents' Briefs of Authorities as being excessive. As evidence of these disbursements, the Respondents' have submitted the affidavit of Jillian Schneider with copies of invoices as attached exhibits for most of these items. It is appropriate to rely on an excerpt from Van Daele v. Van Daele (1993), 45 C.PC. 166 at 170, per McFarlane J.A. (B.C.C.A.) to consider this issue:
...
There, in my opinion, lies the error of principle into which Mr. Justice Meredith fell. The proper test, it seems to me, from a number of authorities referred to us this morning is whether at the time the disbursement or expense was incurred it was a proper disbursement in the sense of not being extravagent, negligent, mistaken or a result of excessive caution or excessive zeal, judged by the situation at the time when the disbursement or expense was incurred.
...
With the latter reasons in mind, I am satisfied these were a reasonable and necessary expenses in this proceeding and the Respondents' have provided affidavit evidence to support these claims. The Respondents' total disbursements of $1,713.57 are allowed in their entirety.
[13] The Respondents' Bill of Costs in A-18-04 is assessed and allowed in the amount of $5,233.57 which includes assessable services, disbursements and applicable GST. A certificate is issued in this Court of Appeal proceeding payable to the Respondents for $5,233.57.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
July 18, 2005
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-18-04
STYLE OF CAUSE: ERNST ZUNDEL
Applicant
and
THE SOLICITOR GENERAL OF CANADA and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON, Assessment Officer
DATED: July 18, 2005
SOLICITORS OF RECORD:
Peter Lindsay FOR THE APPELLANT
Barrister ERNST ZUNDEL
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENTS
Deputy Attorney General of Canada THE SOLICITOR GENERAL OF CANADA and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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