[1] The Applicant sought judicial review of certain actions of the Respondent relative to Requests for Proposals for the manufacture and purchase of the national flag of Canada. The Court dismissed this proceeding with costs to the Respondent. I issued a timetable for written disposition of the Respondent's bill of costs. The Applicant placed in issue all claims in the Respondent's bill of costs, except for certain disbursements, ie. bailiff services ($18.00 and $40.00), verbatim reporter for cross-examination on affidavit ($639.00), printing Respondent's Record ($146.40), couriers ($71.84) and computer-assisted research ($94.86), which I allow as presented.

Counsel Fees

Item 5 3 units claimed for preparation for Applicant's motion for injunction and timeline (available range 3-7 units; hereafter, the numbers in brackets following the description of the item of costs claimed represents the available range of units in the Tariff)

Item 6 3 units claimed for appearance of 1 hour at 3 units per hour on October 28, 2004 (1-3)

Item 8 5 units claimed for preparation for the cross-examination of Robert Myers on his affidavit (2-5)

Item 9 3 units claimed for attendance on October 29, 2004 of 1 hour at 3 units per hour for the cross-examination of Robert Myers on his affidavit (0-3)

Item 6 4.5 units claimed for attendance of 1.5 hours at 2 units per hour on November 4, 2004 (continued from October 28, 2004) (1-3)

Item 2 7 units claimed once for preparation of four affidavits and then again for preparation of the application record (4-7)

Item 8 5 units claimed for preparation for each of two days (December 8 and 9, 2004) for cross-examination of five affiants (2-5)

Item 9 22.5 units claimed for attendance on December 8 and 9, 2004 totalling 7.5 hours at 3 units per hour for cross-examination of five affiants (0-3)

Item 13(a) 5 units claimed for preparation for the hearing of the judicial review (2-5)

Item 14(a) 6 units claimed for attendance of 2 hours at 3 units per hour on the judicial review (2-3)

Item 25 1 unit claimed for services after judgment (1)

Item 26 3 units claimed for the assessment of costs (2-6)

Disbursements

Photocopies: $63.75 claimed for 3 copies at 85 pages each x $0.25 per page for a motion record

The Applicant's Position

[2] The Applicant argued that the hearing for judicial review raised legitimate questions of law concerning procurement practices and reasonable apprehension of bias. There was nothing in the Court's decision to suggest that costs at the higher end of Column III ranges are warranted, despite the Applicant's lack of success.

[3] On October 28, 2004, the Court heard the Applicant's motion, filed on October 26 on the basis of urgency, for an interim injunction and a timeline for the judicial review application. The Respondent did not produce the affidavit of Robert Myers until the hearing. After certain undertakings by counsel for the Respondent, the Court adjourned the motion to November 4 to permit the Applicant to cross-examine Mr. Myers on his affidavit, which occurred on October 29. On November 2, counsel for the Applicant informed opposing counsel that information in the Myers affidavit was inaccurate. The Respondent advised the Court on November 3 that the interim injunction issues had become moot because no compliant bids had been received for the subject Request for Proposal. The motion hearing on November 4 did proceed on the timeline issues.

[4] The Applicant argued that nothing should be allowed for item 5 (preparation for the October 28 appearance), item 8 (preparation for the cross-examination of Mr. Myers on his affidavit) and item 9 (attendance on October 29 at the cross-examination) because the cross-examination occurred on the basis of information in the affidavit subsequently acknowledged by the Respondent as inaccurate, all of which resulted in wasted work by the Applicant. The Applicant argued that item 2 is claimed twice for the same work and therefore there should be only a single allowance. The proof for photocopies is deficient in that it does not set out the basis for claiming $0.25 per page nor establish that said rate represents a reasonable and actual cost.

The Respondent's Position

[5] The Respondent argued that maximum Column III costs are warranted because considerable effort and work were required to respond to allegations of contravention of the National Flag of Canada Manufacturing Standards Act, R.S.C. 1985, c. N-9, improper procurement practice by reason of favouritism and spurious allegations of bad faith and bias, none of which the Court found to be substantiated. The Respondent's conduct of this matter does not warrant reductions further to Rule 409 and 400(3) factors. The principle in Ridell v. Hamel, [1989] 2 F.C. 434 at para. [9], ie. that a successful party's costs should be reduced for advancing unfounded allegations of bad faith and malice, should apply equally here to an unsuccessful party who did the same thing thereby adding considerable length and expense to this litigation.

[6] The Respondent argued that claims associated with Mr. Myers and the October 28, 2004 attendance are appropriate because the errors in his affidavit were simply a function of the short notice of the Applicant's motion and could have been precluded by timely notice, ie. this litigation was instituted on October 8, 2004, but the motion for a stay was not filed until October 26. Item 2 is not incorrectly claimed twice, but rather is claimed once for the supporting affidavits and then separately for the Respondent's Record. The Respondent relied on Bernard v. Canada, 2003 FCA 200 (A.O.) for the claim of $0.25 per photocopy. Further to Rule 408(3), the Respondent is entitled to mid-range item 26 costs of the assessment.

Assessment

[7] The Court's order dated November 4, 2004, after noting that no injunctive relief would issue and after fixing a timetable, directed that costs "of this motion shall be costs in the cause, without prejudice, however, to the right of the applicant to argue that in any event it should be entitled to what it characterizes as wasted costs incurred in connection with its cross-examination of Robert Myers." Said direction is sufficiently broad, in my view, to embrace both a request to the Court for costs thrown away, which the Applicant did not subsequently make, and argument on the assessment of costs further to Rule 409 and 400(3) factors for a reduction on account of wasted effort, which the Applicant did make before me. I think that some reduction of costs in this area of the bill of costs is warranted, but not to the extent that the Applicant contemplates because there is nothing in the record establishing that the affidavit was completely useless, that the errors were wilful on Mr. Myer's part or that other work by the Applicant was somehow impaired. Item 5 is allowed at the minimum 3 units claimed. The items 6 for October 28 and November 4, 2004 are allowed at only 1 and 2 units per hour respectively. Items 8 and 9 relative to Mr. Myers are allowed at the reduced amounts of 2 units and 2 units per hour.

[8] I concluded at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the tariff need not be used, as each item for the services of counsel is discrete and must be considered in its own circumstances. As well, broad distinctions may be required between an upper versus lower allowance from available ranges. My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 (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.

[9] I think that Rules 405 and 407, requiring that an assessment of costs proceed according to Column III unless otherwise provided, gives me the jurisdiction to decide which items are assessable, including how many times a given item may be claimed. The tariff is intended to capture partial indemnity relative to counsel fees and I think that my conclusions in Starlight v. Canada, supra, do not preclude me from comparing the language of given items to determine the extent of indemnity in the tariff's overall scheme. The use of the phrase "all defences, replies, counterclaims or respondents' records and materials" for item 2, when compared to the language in item 8, for preparation for discovery (ordinarily allowed multiple times), contemplates a single recovery in the course of a proceeding. I find some merit in the Respondent's argument concerning the amount of work and I allow a single item 2 at the maximum 7 units. I allow items 8 and 9 (relative to the December 8 and 9 cross-examinations) at only 4 units and 2 units per hour respectively. The Respondent's argument does not convince me that the challenge remaining, once the preliminary work had been completed for the hearing of the judicial review, was as daunting as portrayed. I allow items 13(a) and 14(a) at only 3 units and 2 units per hour respectively. I allow item 25 as presented at 1 unit: at the very least, responsible counsel would explain to the client the implications of the judgment. I allow item 26 as presented at 3 units.

[10] The proof here is less than absolute. The less that evidence is available, the more that the assessing party is bound up in the assessment officer's discretion, the exercise of which should be conservative, with a view to a sense of austerity which should pervade costs, to preclude prejudice relative to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. With particular regard to Canadian Union of Public Employees, Local 4004 v. Air Canada, [1999] F.C.J. No. 464 (A.O.), I allow $63.75 as presented for photocopies.

[11] The Respondent's bill of costs, presented at $9,873.85, is assessed and allowed at $6,793.85.

(Sgd.) "Charles E. Stinson"

Assessment Officer

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-1820-04

STYLE OF CAUSE: FLAG CONNECTION INC.

- and -

THE MINISTER OF PUBLIC WORKS

AND GOVERNMENT SERVICES

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE

OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON

DATED: January 4, 2006

SOLICITORS OF RECORD:

Gowling LaFleur Henderson LLP FOR APPLICANT

Ottawa, ON

John H. Sims, Q.C. FOR RESPONDENT

Deputy Attorney General of Canada

You are here

Flag Connection Inc. v. Canada (Minister of Public Works and Government Services), 2006 FC 10

Citations2006 FC 10

Case tabs

Citations
2006 FC 10