Date: 20070402
Docket: 04-A-44
Citation: 2007 FCA 133
BETWEEN:
REVEREND BROTHER WALTER A.
TUCKER and
REVEREND BROTHER MICHAEL J. BALDASARO
Applicants/Plaintiffs
and
HER
MAJESTY THE QUEEN
Respondent/Defendant
ASSESSMENT OF COSTS - REASONS
PAUL
G. C. ROBINSON
ASSESSMENT
OFFICER
[1]
This
is an assessment of costs pursuant to the Order of the Federal Court of Appeal
dated November 5, 2004 dismissing the Applicants/Plaintiffs’ Notice of Motion
for an extension of time to file a Notice of Appeal of a decision of the
Federal Court dated August 29, 2003. The Federal Court of Appeal reviewed the
material filed by both the Applicants/Plaintiffs and the Respondent/Defendant and
dismissed the proceeding when it determined “that the conditions for granting
an extension” to file a Notice of Appeal had not been met. The Federal Court of
Appeal, after a thorough review of the evidence before it, dismissed the
Applicants/Plaintiffs’ motion with costs to the Respondent/Defendant.
[2]
On
November 30, 2006, the Respondent/Defendant requested an appointment to have
its Bill of Costs assessed.
[3]
It
should be noted that the Applicants/Plaintiffs requested an oral hearing of
this Assessment of Costs. When determining this request, I relied on Rule 3 and
Rule 408(1) of the Federal Courts Rules which state:
3. These Rules shall be interpreted and
applied so as to secure the just, most expeditious and least expensive
determination of every proceeding on its merits.
…
408 (1). An assessment officer may direct
the production of books and documents and give directions for the conduct of an
assessment.
Considering these two specific Federal
Courts Rules as outlined above, I exercised my discretion as an assessment
officer and directed that this matter be determined without personal appearance.
On January 5, 2007, I forwarded correspondence to the parties informing them
that this matter was appropriate for disposition by way of written submissions
and set a timetable for the filing of all materials. All supporting and
opposing materials of the respective parties regarding the assessment of costs
were submitted within the time frames.
[4]
On
April, 2005, the unit value for assessable services in Section 4 of Tariff B of
the Federal Courts Rules was increased to $120.00 per unit by the Chief
Justices of the Federal Court of Appeal and the Federal Court after
consultation with each other. This amount was confirmed by the Chief Justices
as the present Tariff B unit value of $120.00 in the spring of 2006 and this
will be the unit value that I will be utilizing in my assessment of the
Respondent/Defendant’s Bill of Costs.
Assessment
[5]
In
paragraph 15 of the Applicant’s Written Submissions, the Applicants/Plaintiffs
submit that they “are paupers.” In support of this specific submission, the
Applicants/Plaintiffs refer to the “Affidavit of Reverend Tucker, Affirmed,
February 2, 2007” and the “Affidavit of Reverend Baldasaro, Affirmed February
2, 2007.” The Applicants/Plaintiffs, within the respective affidavits and
attached exhibits, have outlined some of the alleged financial hardships they
have and are presently facing with regards to various litigations they are a
party to. In addition, the Applicants/Plaintiffs have submitted within
paragraph 18 of the Applicant’s Written Submissions that the various proceedings
in a number of different courts have caused them to be “over-reached and
overmatched financially.”
[6]
However,
the Respondent/Defendant notes in paragraph 20 of its Reply Submissions that
the Applicants/Plaintiffs have previously “sought an Order allowing him to
proceed in forma pauperis.” The Respondent/Defendant refers to the Order
of the Federal Court in T-1805-98, dated July 19, 1999, wherein, the Applicants/Plaintiffs’
request to proceed in forma pauperis and specific other relief was
dismissed. In support of its submissions that the Applicants/Plaintiffs are
still liable to pay the costs awarded by the Federal Court of Appeal, the
Respondent/Defendant refers to Spatling v.
Canada (Solicitor General.) [2003] F.C.J. No. 620 at paragraph
1 wherein the Federal Court stated:
[1] I have in the past allowed a
litigant with a reasonable claim to proceed notwithstanding an inability to pay
filing fees, applying Pearson v. R. (2000), 195 F.T.R. 31 (Fed. T.D.) and
Rule 55, the result of which can be an exemption from Rule 19, which together
with the Tariffs set the fees payable to the Court. Such an order does not
of course exempt a Plaintiff or an Applicant, from liability to a Defendant or
a Respondent for costs which a judge or prothonotary may impose by reason of
misconduct or from liability to the Defendant for costs imposed by the Court. …
[Emphasis added]
In addition, it is appropriate that I turn
to Chaperon v. Canada, [1992] F.C.J. No. 167 (T.O.) wherein the taxing
officer stated:
Mr. Chaperon asked us to consider his
inability to pay, emphasizing the fact that the Federal government has always
protected the most disadvantaged. Mr. Chaperon has had an opportunity to seek
the services of Legal Aid or of lawyers who accept legal aid mandates: it is
not for the Federal Court to question the parties as to whether they have
availed themselves of these services or whether they were refused legal aid. While
the Court is accessible, it is not free of charge, and at this point there is
no way of being exempted from paying costs awarded by the Court.
[Emphasis added]
[7]
In
the case at bar, I have reviewed the all materials contained in the record of
this proceeding. I note that the Applicants/Plaintiffs did not seek the relief
to proceed in forma pauperis within its original Notice of Motion for an
extension of time to file a Notice of Appeal in the Federal Court of Appeal. As
stated above in paragraph [1], the Federal Court of Appeal dismissed the
Applicants/Plaintiffs’ Notice of Motion and awarded costs to the Respondent/Defendant
in this proceeding. Finally, I refer to Rule 400(1) of the Federal Courts
Rules which states:
400(1) – The Court shall have full
discretionary power over the amount and allocation of costs and the
determination of by whom they are to be paid.
Considering the Order of the Federal Court
of Appeal, the sentiments expressed in both Spatling, supra, and Chaperon,
supra, and Rule 400(1) of the Federal Court Rules as outlined above,
I am of the opinion that the Applicants/Plaintiffs are responsible for any
allowed amounts of monies that are associated with the Respondent/Defendant’s
Bill of Costs.
[8]
The
Applicants/Plaintiffs have requested that I “set-off” any costs associated with
the case at bar with its costs in the Ontario Superior Court in Hamilton, Ontario. My
jurisdiction as an assessment officer only extends to the Federal Court of
Appeal and the Federal Court as defined within the parameters of s.3 and s.4 of
the Federal Courts Act and the definition of an assessment
officer as outlined in Rule 2 of the Federal Courts Rules. In other words,
I cannot extend my jurisdiction to the Ontario Superior Court, since I do not
possess any authorities for that judicial forum. For these reasons, I cannot
set-off any costs in the separate and distinct jurisdiction of the Ontario
Superior Court.
[9]
The
Respondent/Defendant in its Reply Submissions at paragraph 19 have noted that
the Applicants/Plaintiffs’ “submission is littered with references to the Canadian
Charter of Rights and Freedoms and the Magna Carta.” In fact, the
Respondent/Defendant goes as far to suggest that the Applicant/Plaintiffs do
not “make any coherent argument as to why the Assessment Officer should not
assess costs in this matter.” The Respondent/Defendant respectfully asks for
all its costs claimed in its Bill of Costs, plus two additional units for assessable
services under item 26 (Assessment of Costs) to reflect the additional effort
required to prepare its Reply Submissions to the Applicants/Plaintiffs’
confusing and voluminous facts and issues within those opposing affidavits and
representations.
[10]
I
share the concerns of the Respondent/Defendant that the Applicants/Plaintiffs
have not addressed the propriety or quantum of any of assessable services or
disbursements in this specific Bill of Costs. I have read all of the materials
that the Applicants/Plaintiffs have submitted in opposition to the Bill of
Costs. It is my opinion that the Applicants/Plaintiffs have spent much of their
effort challenging the validity of various decisions of a number of courts, the
constitutionality of certain provisions of the Controlled Drugs and
Substances Act, their alleged mistreatment by a number of government
agencies and departments and the alleged misconduct by individual
representatives of those same agencies and departments. In addition, in my
opinion, the Applicants/Plaintiffs have treated these submissions as a vehicle
to request a variety of relief associated with their proceedings in different
legal forums rather than to contest or challenge the assessable services and
disbursements contained in the Bill of Costs. Finally, in my opinion, the
Applicants/Plaintiffs’ submissions have been confusing and irrelevant to this
assessment of costs and have not assisted me in determining the appropriate
amount of monies to be allowed for the Respondent/Defendant’s Bill of Costs.
[11]
As
an assessment officer, I must take a position of neutrality in assessing costs.
I cannot be an advocate for either party but at the same time I cannot allow
assessable services or disbursements which fall outside of the Federal Court of
Appeal decision or the tariffs which form part of the Federal Courts Rules.
In my opinion, the Applicants/Plaintiffs have chosen not to follow the written
directions of this assessment officer when submitting their opposing affidavits
and written submissions which I describe as containing very little substance,
if any. In essence, the Applicants/Plaintiffs must bear the responsibility of
having the Bill of Costs determined on the merits of the Respondent/Defendant’s
written submissions since their own opposing materials have been of no
assistance to me which leaves this Bill of Costs virtually unopposed.
[12]
I
note the Respondent/Defendant has requested an increase from 2 units to 4 units
for item 26 (Assessment of Costs) for the additional research and work
associated with preparing an appropriate response and supporting case law to
the Applicants/Plaintiffs’ confusing submissions and voluminous, but irrelevant,
affidavit evidence. It is my opinion that the Respondent/Defendant has
submitted a reasonable Bill of Costs and has justified the assessable services
and disbursements within its written submissions, as well as its requested
increase for item 26 (Assessment of Costs). For these reasons, I allow 5 units
($600.00) for item 16 (Counsel fee: (a) motion for leave to appeal and all
services prior to the hearing thereof), 4 units ($480.00) for item 26
(Assessment of costs) and the associated disbursements of $96.30 which includes
GST in its entirety for a total of $1,176.30.
[13]
The
Respondent/Defendant’s Bill of Costs is assessed and allowed in the amount of
$1,176.30 which includes assessable services and disbursements which includes
GST. A certificate is issued in this Federal Court of Appeal proceeding for
$1,176.30 payable by the Applicants/Plaintiffs to the Respondent/Defendant.
“Paul Robinson”
Toronto, Ontario
April
2, 2007
FEDERAL COURT
OF APPEAL
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
DOCKET: 04-A-44
STYLE OF
CAUSE: REVEREND
BROTHER WALTER A. TUCKER and
REVEREND BROTHER MICHAEL J. BALDASARO
Applicants/Plaintiffs
and
HER MAJESTY
THE QUEEN
Respondent/Defendant
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL
APPEARANCE OF THE PARTIES
REASONS BY: PAUL
G.C. ROBINSON
Assessment
Officer
DATED: April
2, 2007
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
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