Docket: A-18-21
Citation: 2022 FCA 30
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GARNET MORGAN, Assessment Officer
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BETWEEN:
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KRISTEN ERNEST HUTTON
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Appellant
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and
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RIA SAYAT, LYNN DUHAMIE also known as STEPHANIE DUHAIME the former Canadian Charge d'affaires for the Republic of Iraq, THE ATTORNEY GENERAL OF CANADA (on behalf of THE DEPARTMENT OF NATIONAL DEFENCE, CANADIAN SECURITY INTELLIGENCE SERVICE and CANADIAN SECURITY ESTABLISHMENT), HER MAJESTY THE QUEEN
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Respondents
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REASONS FOR ASSESSMENT
GARNET MORGAN, Assessment Officer
I.
Background
[1] This is an assessment of costs pursuant to an Order of the Federal Court of Appeal (FCA) dated April 27, 2021, wherein the Court ordered that the Appellant’s “appeal is dismissed with solicitor and client costs of the appeal, payable forthwith. The motion under Rule 343(3) and Rule 351 is dismissed.”
[2] On May 19, 2021, the Respondent, Ria Sayat, (hereafter “the Respondent”
) filed a Bill of Costs, which initiated the Respondent’s request for an assessment of costs.
[3] On May 31, 2021, a direction was issued to the parties regarding the conduct and filing of additional documents for the assessment of costs. The court record shows that the direction was sent to the parties by e-mail on May 31, 2021, with both parties acknowledging receipt via e-mail. In response to the direction, on July 2, 2021, the Respondent filed a Record containing an Amended Bill of Costs, an Affidavit of Samantha Boghossian, sworn on July 2, 2021, Costs Submissions and a Book of Authorities. On August 13, 2021, the Appellant filed a Record containing Costs Submissions, an Affidavit of Kristin Hutton, sworn on August 13, 2021 and a Book of Authorities. On August 25, 2021, the Respondent filed Reply Costs Submissions and a Book of Authorities.
II.
Preliminary Issue
A.
Solicitor and client costs.
[4] Rule 407 of the Federal Courts Rules, SOR/98-106 (FCR), states the following regarding the level of costs to be applied for assessments of costs:
407. Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B.
[5] For this particular file though, pursuant to the Court’s Order dated April 27, 2021, the Respondent’s costs should be assessed at the solicitor and client level. In Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), [2017] S.C.C.A. No. 369, at paragraphs 7 and 8, the Registrar at the Supreme Court of Canada, provided clarification on the meaning of solicitor and client costs:
7. I note that the WTFN have based their claim on full indemnity. They state that "in taxing the award to them of costs on a solicitor-client basis on each file, the result should be that they be fully indemnified for their proper fees and disbursements". With respect, that is incorrect. Solicitor and client costs are not equivalent to full indemnification. As the Deputy Registrar noted in Richard:
The awarding of costs on a solicitor and client basis is something less than "solicitor and his own client costs" or full indemnity (see Orkin, at pp. 1-7 to 1-8). It is clear from the appellant's Bill of Costs, as supported by the time dockets attached as Annex 2, that the appellant's claim is for full indemnity. This is improper. [Emphasis added.]
8. The case law is settled that costs awarded on a solicitor and client scale shall be assessed on the basis of quantum meruit: see Mark Orkin, The Law of Costs, loose leaf, Vol. 1, at pp.1-13 to 1-14. See also, Richard, Best, Metzner v. Metzner, (reasons of the Registrar on Taxation dated June 15, 2001; S.C.C. Bulletin, 2001, p. 1159) and Alberta (Human Rights and Citizenship Commission) v. Brewer (reasons of the Registrar on Taxation dated August 25, 2009; S.C.C. Bulletin, 2010, p. 224). A non-exhaustive list of criteria set out in Cohen v. Kealy & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.), cited with approval by this Court in Bhatnager v. Canada (Minister of Employment and Immigration), [1991] 3 S.C.R. 317, constitutes the framework within which quantum meruit should be gauged: see also, Orkin, Vol. 1, at pp. 3-54.1 to 3-54.2, as well as Brewer, Richard and Best.
[Emphasis was added in the original decision.]
[6] Utilizing the Ontario Federation of Anglers and Hunters decision as a guideline, depending on the facts for this particular file, my final determination of the Respondent’s solicitor and client costs may be equivalent to or close to full indemnification, but it may also be lower than this amount, but it will be higher than costs at the party and party level.
B.
Is the HST recoverable?
[7] At paragraphs 12 to 15 of the Appellant’s Cost Submissions, the Appellant has questioned the Respondent’s ability to claim HST, as “costs are payable to the client and not the law firm.”
The Appellant has submitted that the Respondent’s submissions are silent as to whether or not the Respondent’s counsel of record has done the required billing to their client, Ria Sayat, and if HST is recoverable as an “input tax credit”
. In support of the Appellant’s submissions, the jurisprudence: Iamgold Corp. v. Hapag-Lloyd AG, 2020 FC 610, was cited, wherein the Court’s award of costs did not include HST as the Court found “including these amounts in a costs award would represent a windfall for that party.”
In reply, at paragraphs 11 to 16 of the Respondent’s Reply Costs Submissions it is submitted that the Respondent, Ria Sayat is a “salaried employee, and not a person carrying out a business or trade or making a supply or real property.”
It is submitted that Ria Sayat is “not entitled to claim an “input tax credit” for the HST that is owed on her legal fees.”
The Respondent has submitted that Ria Sayat does not meet the Excise Tax Act criteria to claim HST, and that an invoice for legal fees would include the HST to be paid for the legal services rendered.
[8] Further to my review of the Iamgold Corp. decision, the complete sentence contained at paragraph 48 of the Court’s decision, which was referred to at paragraph 14 of the Appellant’s Costs Submissions, states the following:
48. […] The Court disallowed that party's claim for HST and the related Goods and Services Tax [GST] applicable to its counsel fees and disbursements, on the basis that including these amounts in a costs award would represent a windfall for that party, if they could retrieve the amounts through input tax credits (at paras 89-99). […]
[9] Upon my review of the parties’ submissions and utilizing the Iamgold Corp. decision as a guideline, I have determined that the Respondent has provided sufficient clarification that the Respondent, Ria Sayat, is not entitled to claim an “input tax credit”
and would be required to pay HST for any legal fees invoiced from the Respondent’s counsel of record. Therefore, HST will be included as part of my assessment of the Respondent’s costs, as it was included in the Respondent’s Bill of Costs. As this issue has been sufficiently clarified as a preliminary issue it will not require further consideration in this assessment of costs.
C.
Affidavit of Samantha Boghossian, sworn on July 2, 2021.
[10] At paragraphs 23 to 27 of the Appellant’s Costs Submissions the Appellant has raised issues regarding the validity of the Affidavit of Samantha Boghossian, sworn on July 2, 2021, regarding her personal knowledge and accuracy of her review “to confirm the hours expended and the true value of the work product”
performed by counsel. The Appellant has submitted that the affiant, Samantha Boghossian, has not provided any information regarding her own “legal experience”
, her years of experience or if she had any conversations with the counsel of record for the Respondent, Natai Shelsen. It is submitted that the Affidavit of Samantha Boghossian “clearly infringes Rule 81”
of the FCR, and should be excluded or given as little weight as possible, as the affiant does not have any personal knowledge and it is not identified how the affiant obtained the information regarding the hours worked by counsel for the Respondent that is contained in her affidavit.
[11] In reply, at paragraphs 18 and 19 of the Respondent’s Reply Costs Submissions it is submitted that Samantha Boghossian is the legal assistant to Natai Shelsen, who is the counsel of record for the Respondent, and that the Affidavit of Samantha Boghossian contains information that was within the knowledge of the affiant and that it does “not amount to hearsay.”
It is submitted that the Affidavit of Samantha Boghossian was submitted due to counsel being “unable to provide such an affidavit pursuant to rule 82 of the Federal Court Rules [sic], which precludes counsel from deposing to an affidavit and also presenting argument to the Court based on that affidavit.”
It is submitted that the Affidavit of Samantha Boghossian is “entirely permissible, including under rule 81 of the Federal Court Rules [sic]”
as the affiant had “personal knowledge of the facts to which she is deposing”
and that the affiant reviewed the file to determine the number of hours spent by counsel for each assessable service and multiplied the amounts by counsel’s hourly rate.
[12] In Gray v. Canada (Attorney General), 2019 FC 301, at paragraph 133, the Court stated the following regarding the issue of hearsay in affidavits and interlocutory motions:
133. The prohibition of hearsay does not apply on "motions, other than motions for summary judgment or summary trial". Therefore, under Rule 81(1), affidavits with hearsay are presumptively admissible on interlocutory motions (John Doe v R, 2015 FC 236 at paras 21-22, 256 ACWS (3d) 782), which would include motions for production of documents. This evidence does not need to meet the necessity and reliability requirements in order to be admissible. Applying such requirements to hearsay in affidavits on motions would fail to give effect to the words of Rule 81(1). However, Rule 81(1) provides as a condition that the affiant state the grounds for their belief. Rule 81(2) also permits an adverse inference to be drawn where a party fails to provide evidence of persons having personal knowledge of material facts.
[13] In Hay v. Canada, 2008 FCA 327, at paragraph 7, the Assessment Officer stated the following regarding an assessment of costs being considered an interlocutory proceeding:
7. The Appellant's position on the suitability of Ms. Armstrong to swear an affidavit did not address the admissibility of evidence sworn on information and belief, which Ms. Armstrong did here. Affidavits on information and belief are permissible for interlocutory process, i.e. motions, incidental to the hearing of and judgment on the substantive issues of the lawsuit. An assessment of costs is also an interlocutory process as its function is not to further adjudicate on the substantive issues of the lawsuit, which are res judicata further to the judgment, but to transform the costs portion of the judgment to a specific dollar amount.
[14] In addition, in Wadacerf International Inc. v. Canada, 2002 FCA 397, at paragraph 4, the Assessment Officer stated the following regarding the issue of an affiant’s knowledge and the filing of affidavits for an assessment of costs:
4. As to the second objection, it seems quite acceptable to me for an articling student to become familiar with a case at the time the bill of costs is prepared. In my opinion, it will be sufficient to have a good knowledge of all aspects of Tariff B as they apply to the various stages of the proceeding in a particular case. The fact that an articling student has not earlier participated in the hearing of the case does not in any way diminish the validity of his or her affidavit in support of the bill of costs.
[15] Utilizing the Gray, Hay and Wadacerf International Inc. decisions as guidelines, I have determined that the statements made within the Affidavit of Samantha Boghossian, sworn on July 2, 2021, can be considered for this assessment of costs. With regards to the content of the Affidavit of Samantha Boghossian, at paragraph 1 of the affidavit, Samantha Boghossian identifies herself as a legal assistant at Goldblatt Partners LLP, who has been assisting Natai Shelsen, Respondent’s counsel for this file. In addition, at paragraph 18 of the Respondent’s Reply Costs Submissions, Samantha Boghossian has been specifically identified as being the legal assistant for Natai Shelsen. I find it plausible that counsel’s legal assistant would have some personal knowledge of this legal proceeding, especially with regards to the documentation prepared and the billable hours worked by counsel and that she would know where to access this information and/or who to consult with at Goldblatt Partners LLP to obtain this information. In addition, I find it reasonable that pursuant to the Rule 82 of the FCR that counsel’s legal assistant provided an affidavit for this assessment of costs. Further to my consideration of the aforementioned facts for this particular file, including that an assessment of costs is considered to be an interlocutory proceeding, I find the Affidavit of Samantha Boghossian, sworn on July 2, 2021, to be in compliance with Rule 81 of the FCR, and the aforementioned jurisprudence and that it can be reviewed as part of the Respondent’s documentation for this assessment of costs. As this issue has been sufficiently clarified as a preliminary issue it will not require further consideration in this assessment of costs.
D.
The Appellant’s request for costs.
[16] The Appellant, who is a self-represented litigant, has submitted a Bill of Costs within the responding costs documents that were filed on August 13, 2021. My review of the court record did not reveal that there are any Court decisions awarding costs to the Appellant for this particular file. In Canada v. Uzoni, 2006 FCA 344, at paragraph 4, the Assessment Officer stated the following regarding Court decisions being silent with respect to costs:
4. […] It is a well established principle that costs are at the respective Court's discretion and where an order is silent with respect to costs, it implies there is no visible exercise of the respective Court's discretion under Rule 400(1). Reference may also be made to a relevant passage in Mark M. Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, paragraph 105.7:
... Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at a trial with no mention of costs, it is as though the judge had said that he "saw fit to make no order as to costs"...
Similarly, I rely on Kibale v. Canada (Secretary of State), [1991] F.C.J. No. 15, [1991] 2 F.C. D-9 which reflects the same sentiment:
If an order is silent as to costs, no costs are awarded.
[17] Concerning the Appellant being a self-represented litigant, in Yu v. Canada, 2011 FCA 42, at paragraphs 37 and 38, the Court stated the following regarding self-represented litigants and costs:
37. The appellant is seeking costs. The rule against awarding costs to self-represented litigants has been somewhat alleviated in recent years: Sherman v. Canada (Minister of National Revenue), 2003 FCA 202, [2003] 4 F.C. 865 at paragraphs 46 to 52; Thibodeau v. Air Canada, 2007 FCA 115, 375 N.R. 195 at paragraph 24. This new approach to costs for self-represented litigants seeks to provide a moderate allowance for the time and effort devoted to preparing and presenting a case insofar as the successful self-represented litigant incurred an opportunity cost by foregoing remunerative activity.
38. In light of the circumstances of the appellant, who has been incarcerated in a penitentiary throughout these proceedings, I cannot conclude that he has incurred any opportunity cost by foregoing remunerative activity in order to prepare and present his case. Consequently, I would not exercise the discretion of this Court to award costs for fees. However, the appellant should be reimbursed by the respondent for his disbursements in this Court and in the Federal Court.
[18] In the Yu decision, the Court states that remuneration for assessable services is possible for self-represented litigants if they can demonstrate that there was an opportunity cost incurred as a result of acting as their own counsel. These awards of opportunity costs are made by the Court though and not by an Assessment Officer. This issue was addressed in Stubicar v. Canada, 2015 FCA 113, at paragraphs 10 and 11, wherein the Assessment Officer stated the following:
10. In other words, as Assessment Officers are not members of the Court, my jurisdiction is limited as I am not permitted to vary an award of the Court. Therefore, in situations when the Court exercises its jurisdiction and awards assessable services to a self-represented litigant, an Assessment Officer may allow claims for services (See: Carr v Canada, 2009 FC 1196). On the other hand, if the Court does not exercise its jurisdiction to award assessable services to a self-represented litigant, Assessment Officers lacks the jurisdiction to allow services on an assessment of costs. This was the situation in Dewar v Canada, [1985] F.C.J. No. 538, where the Assessment Officer held:
A lay litigant is restricted to taxing disbursements and may not tax fees calculated to be an equivalency, in terms of his time or out-of-pocket loss, to solicitor's fees or otherwise.
11. I have reviewed the award of costs and although it awards costs in both the Federal Court of Appeal and the Federal Court, there is no indication that the Court has exercised its jurisdiction to award assessable services to the Appellant.
[19] Utilizing the Uzoni, Yu and Stubicar decisions as guidelines, I find that in the absence of a Court decision awarding opportunity costs to the Appellant as a self-represented litigant, or a decision specifically awarding costs for the appeal proceeding or any related motions to the Appellant, that I do not have the authority to assess Appellant’s Bill of Costs. As a result, I have determined that the Appellant’s claims for Items 21(a) and 26 must be disallowed, as they pertain to the facts for this particular file.
III.
Assessable Services
[20] The Respondent has claimed 86.6 hours for assessable services, for a total dollar amount of $32,782.43, inclusive of HST.
A.
Item 21(a) - Counsel fee on a motion, including preparation, service and written representations or memorandum of fact and law.
(1)
Request for Directions via letter to Registrar.
[21] The Respondent has claimed 3.2 hours ($1,072.00) for Item 21(a), for the preparation of a letter dated February 3, 2021, to the Registrar of the FCA, requesting a direction from the Court regarding the late filing of the Appellant’s Notice of Appeal. In the alternative, the Respondent has suggested that this claim could be assessed under Item 27, if Item 21(a) is not the correct Item for this particular claim. In the Affidavit of Samantha Boghossian, sworn on July 2, 2021, at paragraph 10, it states that the time spent on this particular service was reviewed and it was “determined that Ms. Shelsen spent at least 3.2 hours (for a total of $1,072.00 in legal fees) on work related to the request for direction”
. At paragraphs 21 and 22 of the Respondent’s Costs Submissions it is submitted that the services performed by the Respondent included “preliminary research regarding the appropriate procedure in the circumstances, preparation of Ms. Sayat’s request for directions and communication with the Court regarding that request.”
The Respondent has submitted that following a conversation with the court registry that it was “determined that a motion to strike the Notice of Appeal would be the appropriate procedure”
, instead of submitting a letter for a direction from the Court.
[22] In response, at paragraphs 17 to 22 of the Appellant’s Cost Submissions it is submitted that the particulars for Item 21(a) contained in Respondent’s Bill of Costs conflicts with the intended purpose of Item 21(a), and has rhetorically asked why Item 21(a), which pertains to motions is being claimed for a request for a direction from the Court. The Appellant has submitted that the Affidavit of Samantha Boghossian “does not accurately reflect the characterization of work described in the Bill of Costs”
and that the costs do not appear to be reasonably incurred and are excessive when compared to the service performed.
[23] In reply, at paragraph 17 of the Respondent’s Reply Costs Submissions it is submitted that the Respondent’s description for Item 21(a) was “pulled directly from Tariff B” and that the claim is adequately described in the Respondent’s written submissions and in the Affidavit of Samantha Boghossian.”
In addition, the Respondent submitted that “the Amended Bill of Costs also references Tariff B, item 27, which permits an assessment officer to allow “such other services”.”
[24] In Carlile v. Canada, [1997] F.C.J. No. 885, at paragraph 26, the Assessment Officer stated the following with regards to equitable assessments of costs:
26. Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. This presumes a subjective role for the Taxing Officer in the process of taxation. My Reasons dated November 2, 1994, in T-1422-90: Youssef Hanna Dableh v. Ontario Hydro cite, [1994] F.C.J. No. 1810, at page 4, a series of Reasons for Taxation shaping the approach to taxation of costs. Dableh was appealed but the appeal was dismissed with Reasons by the Associate Chief Justice dated April 7, 1995, [1995] F.C.J. No. 551. I have considered disbursements in these Bills of Costs in a manner consistent with these various decisions. Further, Phipson On Evidence, Fourteenth Edition (London: Sweet & Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars as the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donations of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd.
[25] Further to my review of the parties’ costs documents in conjunction with the court record and Tariff B of the FCR, and utilizing the Carlile decision as a guideline, I have determined that the services performed in relation to the Respondent’s direction letter can be assessed under Item 21(a). The research performed by the Respondent for the direction letter was directly related to the motion to the strike the Appellant’s Notice of Appeal, which was later filed by the Respondent. This being noted, the court record shows that no direction was actually sought by the Respondent, as it was decided that it would be more suitable for a motion to be filed instead of requesting a direction from the Court. This being considered, I am not convinced that the Appellant should be required to reimburse the Respondent for the entire claim for Item 21(a), as the direction letter was not pursued by the Respondent. Having reviewed the Respondent’s letter dated February 3, 2021, I have determined that it is reasonable to allow 2 hours for the Respondent’s services performed in relation to the research performed for Respondent’s forthcoming motion to strike the Appellant’s Notice of Appeal, and the related conversation with the court registry about the direction letter and the motion.
B.
Item 21(a) - Counsel fee on a motion, including preparation, service and written representations or memorandum of fact and law.
(1)
Motion to Strike on basis that appeal deadline had expired and no reasonable cause of action – heard in writing.
[26] The Respondent has claimed 39.8 hours ($13,333.00) for Item 21(a), for the preparation of the Respondent’s motion in writing to the strike the Appellant’s Notice of Appeal, which was filed on February 22, 2021. In the Affidavit of Samantha Boghossian, sworn on July 2, 2021, at paragraph 12, it states that the time spent on this Item was reviewed and it was “determined that Ms. Shelsen spent at least 39.8 hours (for a total of $13,333.00 in legal fees) on work related to the motion to strike.”
At paragraph 23 of the Respondent’s Costs Submissions it is submitted that the services performed by the Respondent “included researching, drafting and preparing moving materials and reply submissions, including reviewing initial and supplementary books of authority and corresponding with the parties about the Motion to Strike.”
At paragraphs 24 and 25 it is submitted that a substantial amount of work was required to research and prepare the written submissions for the motion as the underlying action was complex and also because submissions were provided regarding the awarding of solicitor and client costs for this motion. It is submitted that the Respondent was entirely successful with the motion, as the Appellant’s Notice of Appeal was struck and solicitor and client costs were awarded to the Respondent.
[27] In response, at paragraphs 32 to 38 of the Appellant’s Cost Submissions it is submitted that the Respondent is seeking an inflated amount of costs for the motion to strike, which consisted “primarily of 20 pages of written argument with extensive footnotes”
. It is submitted that the particulars of the work performed for the motion are scant and that the assessment for this claim should be reduced to 15.6 hours or $4,680.00, which would be similar to the amount of time that the Appellant has claimed in the Appellant’s Bill of Costs contained in the Appellant’s Costs Submissions. As a comparator for the suggested costs for the Respondent, the jurisprudence: Dalfen v. Bank of Montreal, 2016 FC 1133, was cited by the Appellant. The Appellant submitted that within this decision, the Court reviewed motions to strike and “[i]n each case the successful party was awarded $5,000.00 on a solicitor-client scale for a Motion that is exactly comparable to the Respondent’s Motion to Strike out a Notice of Appeal.”
[28] In reply, at paragraphs 3 and 5 of the Respondent’s Reply Costs Submissions it is submitted that the Appellant has not substantiated the assertion that the Respondent’s costs should be reduced to $4,680.00, and that the Respondent relies on the moving submissions that have been filed, which “clearly set out the reasonableness and necessity of the time spent and costs incurred in relation to Mr. Hutton’s appeal”
. In addition, at paragraph 23 it is submitted that the time spent by the Appellant in “preparing his materials is an inappropriate comparator and ought to be disregarded.”
[29] I have reviewed the parties’ costs documents in conjunction with the court record and Tariff B of the FCR and I have determined that it is reasonable to allow most of the Respondent’s claim for the services performed in relation to the Respondent’s motion to strike. In my assessment of this claim, I reviewed the factors in awarding costs that are listed under Rule 400(3) of the FCR, which I am able to consider in an assessment of costs pursuant to Rule 409 of the FCR. When I consider factors such as; (a) the result of the proceeding; (c) the importance and complexity of issues; and (g) the amount of work performed by the Respondents; the court record reflects that the Respondent successfully argued the motion to strike before the Court and was awarded solicitor and client costs; that the issues argued were of significant importance and complexity; and that a substantial amount of work was done by the Respondent as the moving party and also in reply to the Appellant’s responding Motion Record, which was 263 pages in length. With regards to the Dalfen decision cited by the Appellant, my review of this decision did not reveal that the costs awarded for this file, nor the jurisprudence cited by the Court within the Dalfen decision had costs awarded at the solicitor and client level. In some of the decisions, the Court awarded costs at an elevated level or as a lump sum but there was no reference to these costs being awarded at the solicitor and client level, which differs from this particular file, wherein the Court’s Order dated April 27, 2021, explicitly awarded costs at the solicitor and client level to the Respondent.
[30] It is noted that the 39.8 hours claimed was based on a review of the time spent by counsel for the Respondent for this assessable service, as determined by counsel’s legal assistant. As noted earlier in these Reasons, in the Appellant’s Bill of Costs it is claimed that the services performed by the Appellant totalled 15.6 hours (or approximately 2 working days) in relation to the motion to strike, I therefore find it plausible that the services performed by the Respondent as the moving party could possibly total 39.8 hours (or approximately 5 working days) based on the facts pertaining to this particular motion and my review of the court record. Further to my consideration of the aforementioned facts for this particular claim, I have determined that it is reasonable to allow 37 hours for this claim. My allowance of costs for this claim has taken account that I have already allowed 2 hours for the preparation of the motion to strike in relation to the Respondent’s direction letter. Therefore, 39 hours in total have been allowed for Item 21(a) for the services performed by the Respondent in relation to the motion to strike the Appellant’s Notice of Appeal.
C.
Item 21(a) - Counsel fee on a motion, including preparation, service and written representations or memorandum of fact and law.
(1)
Motion to Settle Contents of Appeal Book – heard in writing.
[31] The Respondent has claimed 24.1 hours ($8,073.50) for Item 21(a), for the preparation of the Respondent’s responding motion documents in relation to the Appellant’s motion in writing to determine the contents of the appeal book and to admit fresh evidence that was filed on March 4, 2021. In the Affidavit of Samantha Boghossian, sworn on July 2, 2021, at paragraph 14, it states that the time spent on this particular service was reviewed and it was “determined that Ms. Shelsen spent at least 24.1 hours (for a total of $8,073.50 in legal fees) on work related to the motion to settle the contents of the appeal book”
. At paragraph 26 of the Respondent’s Costs Submissions it is submitted that the services performed by the Respondent included “preparing, researching and drafting Ms. Sayat’s responding record, and corresponding with counsel in relation to the contents of the appeal book.”
In response, at paragraphs 3 to 8 of the Appellant’s Cost Submissions it is submitted that the Court did not “grant the Respondent its costs for the Appellant’s Motion under Rules 343(3) and 351 of the Federal Court Rules [sic]”
. It is submitted that Court was silent with respect to costs and that the Respondent should have filed a motion pursuant to Rule 397(1)(b) of the FCR for reconsideration of the Court’s decision to request that costs be awarded. The jurisprudence: Frank Kindred Canada v. Gacor Kitchenware, 2012 FCA 316, was cited in support of the Appellant’s submissions. In reply, at paragraphs 6 to 9 of the Respondent’s Reply Costs Submissions it is submitted that “[t]he word “appeal” is broad and plainly intended to capture all aspects of the Plaintiff’s appeal”
which is made up of various interlocutory motions. It is submitted that if the Court intended to limit costs that the word “motion”
instead of “appeal”
would have been used in the Court’s Order for this file. The jurisprudence: Frank Kindred Canada v. Gacor Kitchenware, 2012 FCA 316, was also cited in support of the Respondent’s submissions.
[32] In Industrial Milk Producers Assn. v. British Columbia (Milk Board), [1988] F.C.J. No. 537, the Assessment Officer stated the following regarding motions to strike and the associated costs:
There is another problem: the effect of an Order striking an action with costs. Are costs payable only for the proceeding to strike, i.e. the motion or are costs payable for the entire action to date? For instance, are the Tariff B1(1)(a) and (j) fees for services prior to and including pleadings and for services after judgment respectively taxable where, as here, the Order striking the action does not describe the costs awarded therein as "costs of the action"? Clearly a judgment given after trial and awarding costs without designating them as "costs of the action" does not restrict said costs to the trial alone but rather includes said "costs of the action". Here, a strict and limited interpretation of the phrase, "recover its costs", in Reed J.'s Order would preclude all cost s other than the Tariff B1(1) (e) fee for the interlocutory proceeding it self. The term "proceeding" in Rule 344(1) can mean an action as a whole or a single interlocutory matter therein. Plaintiffs would not have been entitled to B1(a) and (j) costs in addition to B1(1)(e) costs if they had succeeded and been awarded costs on the motion to strike. A major difference is that a successful motion to strike disposes of two proceedings: the interlocutory one and the action itself whereas an unsuccessful motion disposes of the interlocutory proceeding only. I note that Rule 406(1) provides for "costs of the action" upon discontinuance. I conclude that a Defendant, successful on a motion to strike, is entitled to tax its costs of the action to date even if the award of costs in the Order does not, specifically identify said costs as those of the action.
[33] Further to my review of the parties’ costs documents, my review of the Court’s Order dated April 27, 2021, did not reveal that costs were awarded to the Respondent for the Appellant’s motion to determine the contents of the appeal book and to admit fresh evidence that was filed on March 4, 2021. In the Uzoni decision that was referred to earlier in these reasons, it is outlined that if a Court decision is silent as to costs that no costs have been awarded. This being noted, the Industrial Milk Producers Assn. decision has made a distinction that for motions to strike, that the granting of a motion to strike with costs entitles the party awarded costs to not only claim costs for the motion strike but to also claim costs for the underlying proceeding (such as an action proceeding or a judicial review proceeding) even if the decision did not explicitly state that costs were awarded for the underlying proceeding or the motion to strike. This decision is distinct from the Frank Kindred Canada decision though, wherein at paragraph 5, the Court granted the Respondent’s application to quash the Applicant’s application for judicial review and then at paragraph 6, specifically awarded costs for 3 additional motions on the file to the Respondent. Therefore, I find that Court’s decision in Frank Kindred Canada only awarded costs for the motion to quash and the underlying proceeding and did not award all encompassing costs for all of the motions on the file. The Court specifically addressed the other motions on the file and specifically awarded costs for those motions on the file at paragraph 6 of the decision.
[34] Therefore, further to my review of the Uzoni, Industrial Milk Producers Assn., and Frank Kindred Canada decisions, I have determined that the Respondent’s claim for Item 21(a) must be disallowed, as there is no Court decision specifically awarding costs to the Respondent for the Appellant’s motion to determine the contents of the appeal book and to admit fresh evidence.
D.
Item 26 – Assessment of Costs.
[35] The Respondent has claimed 12.5 hours ($4,187.50) for Item 26, for the preparation of the Respondent’s documents in relation to this assessment of costs. In the Affidavit of Samantha Boghossian, sworn on July 2, 2021, at paragraph 17, it states that the time spent on this particular service was reviewed and it was “determined that Ms. Shelsen spent at least 12.5 hours (for a total of $4,187.50 in legal fees) on work related to this cost assessment”
. At paragraph 29 of the Respondent’s Costs Submissions it is submitted that the services performed by the Respondent included “correspondence with the Appellant, the preparation of the bill of costs, and researching and preparing written submissions.”
It is submitted that the Court admonished the Appellant’s conduct by awarding solicitor and client costs to the Respondent and that it was necessary for the work to be performed by the Respondent for the assessment of costs to ensure that full costs were indemnified. In response, at paragraphs 29 to 31 of the Appellant’s Costs Submissions it is submitted that the Respondent’s “work product for 12.5 hours primarily consists of the Affidavit of the legal secretary Samantha Boghossian wherein her costs are not claimed anywhere in the Bill of Costs nor can there be an hourly rate associated with the legal secretary for her sworn Affidavit with Exhibits.”
It is submitted that the Respondent’s claim of 12.5 hours “is grossly inflated to the actual “work product” of eleven pages of submissions written by Ms. Shelsen who is a senior litigator.”
In reply, at paragraph 22 of the Respondent’s Reply Costs Submissions, it is submitted that “the content and quality”
of the parties’ costs documents are incomparable, and provided some examples of the differences between the parties’ cost documents, such as citations, formatting and grammar.
[36] Further to the Appellant’s submissions regarding the hourly rate associated with the work performed by the Respondent’s counsel’s legal assistant not being found in the Respondent’s Bill of Costs, in Air Canada v. Canada (Minister of Transport), [2000] FCJ No 101, at paragraph 15, the Assessment Officer stated the following regarding claims for services performed by non-lawyers:
15. By contrast, item G28 does not suggest an indemnity additional to an indemnity already sought and approved for supervising counsel. Rather, it suggests indemnification at "50% of the amount that would be calculated for a solicitor" (my emphasis). That is, the lawyer delegates to the non-lawyer who then provides a service, and the supervising lawyer may bill the client accordingly at a lower hourly rate. Item G28 then reflects a reduced indemnification in the party and party scheme of costs. Further, I doubt that the scheme of this Tariff, requiring a special direction of the Court in the circumstances of items E14(b) and F22(b), was intended to leave unfettered the access to indemnification for non-lawyers. In other words, if the supervising lawyer, by the authority of the law society of the relevant province, delegates a particular service to the non-lawyer, the limit imposed by item G28 is that the litigant to be indemnified cannot recover once for the supervising lawyer and again for the non-lawyer. For example, if the non-lawyer handles all aspects of an assessment of costs, an activity which I do not think the Ontario practice, ie. paragraph 1 of Rule 16 in the Professional Conduct Handbook, precludes for paralegals, a claim cannot be made under both items G26 and G28. If the lawyer and non-lawyer shared responsibility, I would expect a claim to be properly advanced under item G26, thereby precluding item G28. Here, the Defendants were indemnified already under items D13(a) and E14(a) thereby precluding the claim for item G28. The Plaintiff consented to item D13(a) under item G28. Here, a consent cannot create jurisdiction for me. I remove the $250.00 and $3,399.30 for items D13(a) and E14(a) respectively claimed under the aegis of item G28.
[37] My review of the Air Canada decision indicates that fees for the services of non-lawyers is incorporated into the service fees for the supervising lawyer. This is further supported by the following jurisprudence: Guest Tek Interactive Entertainment Ltd. v. Nomadix, Inc., [2021] F.C.J. No. 979, at paragraphs 54 and 55, and Truehope Nutritional Support Ltd v. Canada (Attorney General), [2013] F.C.J. No. 1297, at paragraph 81. Therefore, utilizing the aforementioned decisions as guidelines, I find that the Respondent’s claim for Item 26 was properly submitted in the Bill of Costs.
[38] Concerning the number of units claimed by the Respondent, the 12.5 hours claimed by the Respondent for Item 26 includes the preparation of the Respondent’s Bill of Costs and moving party costs documents, the review of the Appellant’s responding costs documents, and the preparation of the Respondent’s reply costs documents. By comparison, at paragraph 31 of the Appellant’s Costs Submissions, it is submitted that the Appellant spent 7 hours in total to review the Respondent’s documents and to prepare the Appellant’s responding costs documents. Considering the time spent by the Appellant, I find it reasonable that the services performed by the Appellant totalled 7 hours (or approximately 1 working day) to prepare the Appellant’s responding costs documents and I equally find it reasonable that the services performed by the Respondent totalled 12.5 hours (or approximately 1.5 working days) to prepare the Respondent’s moving party and reply costs documents. Therefore, I have determined that the services performed by the Respondent were necessary and that it is reasonable to allow 12.5 hours for Item 26.
E.
Item 27 – Such other services as may be allowed by the assessment officer or ordered by the Court.
[39] The Respondent has claimed 7 hours ($2,345.00) for Item 27, for the services related to “two offers to settle the appeal pursuant to rule 420 of the Federal Courts Rules”
, made on January 19, 2021, and on January 28, 2021, as submitted at paragraph 17 of the Respondent’s Costs Submissions. In the Affidavit of Samantha Boghossian, sworn on July 2, 2021, at paragraph 8, it states that the time spent on this particular service was reviewed and it was “determined that Ms. Shelsen spent at least 7 hours (for a total of $2,345.00 in legal fees) on work related to the offers to settle”
. At paragraph 19 of the Respondent’s Costs Submissions it is submitted that the services performed by the Respondent included “researching the requirements of offers to settle under the Federal Courts Rules, preparing offers to settle and corresponding with the parties”
. It is estimated that the Appellant exchanged about 21 e-mails with the Respondents (Ria Sayat and the Attorney General of Canada), with some of the e-mails containing “substantive and voluminous”
issues being dealt with by the parties. The Respondent noted that the attempts to settle the Appellant’s appeal proceeding were unsuccessful and attached copies of the Respondent’s letters referring to the offers to settle as Exhibits “A”
, “B”
and “C”
to the Affidavit of Samantha Boghossian, sworn on July 2, 2021. In response, at paragraph 11 of the Appellant’s Cost Submissions it is submitted that the Respondent’s offers to settle do not elevate the Respondent’s costs to a level greater than the solicitor and client level.
[40] Concerning the Appellant’s response, my review of Rule 420 of the FCR, indicates that the possible doubling of costs related to offers to settle is based on a party being entitled to party-and-party costs. As the Respondent is entitled to solicitor and client costs for this particular file the doubling costs is not applicable. Further to my review of the Respondent’s costs documents, I find it reasonable that the services performed by the Respondent totaled 7 hours (or approximately 1 working day), to research offers to settle and to read and draft correspondence with the other parties. Therefore, I have determined that the services performed by the Respondent in relation to the offers to settle were necessary and that it is reasonable to allow 7 hours for Item 27.
F.
Total amount allowed for assessable services.
[41] A total of 58.5 hours have been allowed for the Respondent’s assessable services, for a total dollar amount of $22,145.18, inclusive of HST.
G.
Disbursements
[42] The Respondent did not submit any claims for disbursements.
IV.
Conclusion
[43] For the above Reasons, the Respondent’s (Ria Sayat) Bill of Costs is assessed and allowed in the total amount of $22,145.18, payable by the Appellant to Ria Sayat. A Certificate of Assessment will also be issued.
"Garnet Morgan"
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