Madsen v. Canada, 2007 FCA 91

Date: 20070305

Docket: A-125-05

Citation: 2007 FCA 91

BETWEEN:

MARY MADSEN

Appellant

and

HER MAJESTY THE QUEEN

Respondent

ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]               This appeal from a decision of the Tax Court of Canada was dismissed with costs. The Respondent's bill of costs is presented at $1,374.80, including a claim of $360.00 under item 26 (assessment of costs). The Respondent noted that the bill of costs had been forwarded to the Appellant for payment on three different occasions, but nothing was paid. Counsel for the Appellant, within my deadline for reply materials, advised by letter (January 4, 2007) that the Appellant did not dispute or take issue with the bill of costs and its associated materials. Subsequently, by letter dated February 1, 2007, counsel for the Appellant indicated he had not noticed, at the time of his January 4, 2007 letter, that the bill of costs had been revised to include an item 26 and that his client does not consent to item 26, having informed opposing counsel several times that there was no dispute with the bill of costs (the version not including an item 26). His position, expressed to opposing counsel before the bill of costs was filed in September 2006, was that non-payment of a bill of costs not in dispute (opposing counsel having been informed of the absence of any objection to the amount of costs sought) did not justify bringing on an assessment of costs. He reiterated the absence of objection to the bill of costs as originally served and produced a copy bearing the consent of his client to $1,014.80 reflecting a denial of item 26 costs further to Rule 408(3).

[2]               By letter dated February 5, 2007, counsel for the Respondent noted the assertion in opposing counsel's January 4 letter that the Appellant does not "take issue with the Respondent's written submissions on costs." Paragraph 6 of said submissions specifically refers to the inclusion of a claim for item 26. The February 5, 2007 letter then notes that the third of the letters to opposing counsel (May 19, 2006) advised that the Respondent would bring on an assessment of costs if payment was not made by June 19, 2006. Around August 3, 2006, opposing counsel left a message that he did not dispute the bill of costs, but that he was having difficulty locating his client. Counsel for the Respondent then left messages at least three times with opposing counsel, but he did not respond. One last message was left on September 11, 2006, indicating that an assessment of costs would be sought if there was no response. There was not and the Respondent's bill of costs, which included item 26, was served on opposing counsel and presented for assessment. The Respondent argued that item 26 should be allowed because there were costs involved in service and filing of the bill of costs for assessment, preparation of a supporting affidavit and formulation of written submissions.

Assessment

[3]               The threat of bringing on an assessment of costs as leverage to extract payment is a common tactic. It is inappropriate to incur substantial costs for assessment, i.e. supporting affidavit and written submissions, if the opposing party has made clear that it consents to or does not dispute the claimed costs. One very good reason for taking out a consent certificate of assessment flows from an analysis of the consequences of a notice of discontinuance versus consent judgment. In the circumstances of the former, the dispute between the litigants is not res judicata and could be revived within the statutory time limit. In the circumstances of the latter, it is res judicata and affords the additional feature, if relevant, of satisfaction by way of execution.

[4]               I will not lay blame here. I understand the problems associated with busy counsel and uncooperative clients. If counsel for the Appellant had, or could have, provided a signed consent forthwith, then I agree that a consent bill of costs excluding item 26 would have been appropriate. That did not occur. Confirmation by the litigant liable to pay costs of an absence of dispute with said costs as claimed is worthless to a successful litigant, such as the Respondent here, if payment thereof is not forthcoming. A litigant cannot apply execution process for costs unless it first has assessed said costs, even if by default. As noted by the Respondent, there are associated costs. The Respondent's bill of costs is assessed and allowed as presented at $1,374.80.

"Charles E. Stinson"

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                          A-125-05

STYLE OF CAUSE:                          MARY MADSEN v. HMQ

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                    CHARLES E. STINSON

DATED:                                                                                 March 5, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: