Date: 20060223
Docket: T-1164-04
Citation: 2006 FC 247
BETWEEN:
GEORGE GAMBINI and PHILLIP MacDONALD
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to an Order of the Federal Court dated May 12, 2005 dismissing the Applicants' application for judicial review with costs. The judicial review arose from a decision taken by the Warden of Fenbrook Institution to refuse to review and quash a behavioural contract required from the Applicants and to amend and delete alleged false information contained in their respective institutional files. The Court, after a thorough review of the evidence before it, dismissed the application for judicial review as premature.
[2] The Respondent requested a timetable for an assessment of costs in this proceeding and filed its Bill of Costs on July 27, 2005 and July 29, 2005, respectively.
[3] On August 4, 2005, a letter was issued setting a timetable for written submissions and the filing of all materials. The Respondent complied with the timeframes for the filing of the supplementary affidavit in support, letter of written submissions and a revised Bill of Costs. On August 29, 2005, the Applicants' solicitor filed the Reply Submissions with the un-commissioned affidavit of George Gambini attached as an appendix to the submissions. The Respondent filed Rebuttal Submissions on September 8, 2005.
[4] It should be noted that on October 2, 2005, the Applicants forwarded a new affidavit of Phillip MacDonald sworn September 13, 2005. A letter of explanation, which had been signed by the Applicants' solicitor, accompanied the Applicants' affidavit. The solicitor's letter briefly outlined some of the difficulties encountered when arrangements were made to have the Applicants' supporting affidavits commissioned by CSC (Correction Services of Canada) staff. In support of this submission regarding the respective deficiencies, the Applicants have referred to the decision in Grace M. Carlile v. Her Majesty the Queen, [1997] F.C.J. No.885 (TO):
...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 indeed were incurred. ...
[Emphasis is mine]
I am not completely satisfied that Carlile supra, above supports the Applicants' position with regards to the lack of a commissioner's signature for the first affidavit and the late filing of the second affidavit. Notwithstanding that the Applicants did not comply strictly with the timetable that I issued on August 4, 2005, I am satisfied that they have made best efforts to forward their respective supporting material to the Federal Court in a timely fashion. Therefore, I have placed the affidavits on the Court file and I have considered the Applicants' affidavits with regard to the assessment of the Respondent's Bill of Costs.
[5] In the first paragraph of the Submissions of the Applicants Regarding Costs, the Applicants submit that "...a bill of costs assessed and allowed in the amount of something less than $1,500 would be fair and reasonable under the circumstances". In support of this submission, the Applicants refer to their respective affidavits which they submit verifies their impecuniosities, their particular circumstances concerning their imprisonment and their alleged lack of assets. They also submit that "... reasonableness must be assessed against what the respondent has actually paid out of pocket". The Applicants submit that the solicitor from the Department of Justice who represents the Correctional Service of Canada "...would have to be paid in any event of the cause and no actual transfer of funds takes place". The Applicants submit it would be fair and reasonable in this case for "...reimbursement in whole or in part of funds actually expended". In other words, the Applicants submit that the Respondent cannot be indemnified for costs that were not actually incurred since no real funds were actually paid out of pocket because the Respondent's solicitor was actually an employee of the Federal Government.
[6] In their Submissions of the Applicants Regarding Costs, the Applicants refer to their reasonable expectations of costs for proceedings of this nature. The Applicants allege that "... abuses do occur in prison as in any large institution". The Applicants further submit that costs "...should not be so outrageous as to foreclose an inmate's right to challenge an individual or an institution whose policies or procedures are oppressive or unfair". The Applicants have referred to a number of unsuccessful judicial review proceedings where the costs awards were in the $1,000.00 to $2,000.00 range which the Applicants submit that "...cost awards in prison situations tend to be lower than costs awards for non-incarcerated litigants precisely for the reasons suggested earlier". The Applicants submit a more modest Bill of Costs would be appropriate considering their arguments above.
[7] The Respondent's Rebuttal opposes the Applicants' submissions with regards to the issues mentioned in paragraphs [5] and [6] above. The Respondent submits that the Applicants' alleged "... inability to pay should be given no weight in an assessment of costs". The Respondent also submits that the Supplementary Affidavit of Natalie Henein sworn August 16, 2005 reflects the funds that were reasonably and actually expended during the course of this litigation. Finally, the Respondent refers to Rules 400(2) and (7) of the Federal Courts Rules which state:
...
Rule 400(2) - Costs may be awarded to or against the Crown.
...
Rule 400(7) - Costs shall be awarded to the party who is entitled to receive the costs and not to the party's solicitor, but they may be paid to the party's solicitor in trust.
As outlined in the Respondent's submissions above, the Respondent submits that their Bill of Costs is reasonable, has been established by affidavit and was justified within the parameters of the Federal Courts Rules.
[8] I agree with the Respondent's submissions as outlined above in paragraph [7] and I cannot agree with the submissions of the Applicants as outlined above in paragraphs [5] and [6] respectively. The Respondent has referred to specific case law which supports the proposition that a party's inability to pay cannot be a consideration in the assessment of costs. I refer to paragraph [20] of the reasons of Addy J. in William (Billy) Solosky, [1977] 1 F.C. 663 (Trial Division):
[20] A practice seems to be developing lately whereby costs, which are normally awarded against an unsuccessful litigant in a civil matter, are not awarded when the litigant happens to be a convicted criminal. This practice, in my view, is to be deplored and discouraged. I can see no reason whatsoever why a person in the position of the plaintiff should be afforded special treatment regarding costs which would not be enjoyed by an ordinary citizen. Furthermore, in deciding whether costs should or should not be awarded against an unsuccessful plaintiff, neither the ability to pay nor the difficulty of collection should be a deciding factor but, on the contrary, the awarding or refusal of costs should be based on the merits of the case. Unless special circumstances exist to justify an order to the contrary, costs should normally follow the event. No such circumstances exist here.
[Emphasis is mine]
In addition, I note that the Applicants filed a Notice of Application for a judicial review of a decision that they allege was contrary to section 24 of the Corrections and Conditional Release Act that allegedly infringed on their constitutionally guaranteed rights under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The citizens of Canada share the same rights that the Applicants have exercised in this Notice of Application which is the entitlement to seek a judicial review of any decision of any Federal board, commission or tribunal that an individual believes has adversely affected his or her rights. However, it may be trite to point out that in any democracy with certain rights there are certain responsibilities. It is my opinion regarding this assessment of costs and considering Solosky, supra above that no special considerations exist that exempt the Applicants from their shared responsibility for the Respondent's Bill of Costs.
[9] The Applicants have made submissions opposing specific assessable items that have been claimed by the Respondent. The Applicants submit that the units claimed for the Notice of Appearance should be reduced since it was only a single page document and it "... should be considered part of the Respondent's reply". In addition, the Applicants note that the three items listed as Item 2 in the Respondent's Bill of Costs should only be one entry and that item should be reduced to 4 units for this assessable service.
[10] In the Tariff B of the Federal Courts Rules, Item 2 actually reads:
2. Preparation and filing of all defences, replies, counterclaims or respondents' records and materials.
With regards to the Respondent's Notice of Appearance, I agree with the Applicants that 4 units for this assessable service are not appropriate. In fact, it is my opinion that the units requested for the Notice of Appearance should actually be requested as Item 27 which reads:
27. Such other services as may be allowed by the assessment officer or ordered by the Court.
I will allow 1 unit ($120.00) for the serving and filing of the Respondent's Notice of Appearance.
[11] I also share the Applicants' concerns that the Respondent has requested an additional 4 units for the Respondent's Reply filed July 29, 2004. It is my opinion that this assessable service for filing a reply to the Applicants' Written Representations should form part of the request for the assessable services of Item 5 of the Federal Courts Rules which reads:
5. Preparation and filing of a contested motion, including materials and responses thereto.
The key phrase regarding this issue is "...and responses thereto". It is my opinion that the Respondent's Reply filed July 29, 2004 was actually a response to the Applicants' Written Representations opposing the Respondent's motion. Therefore, the 4 units requested for the Respondent's Reply under Item 2 are disallowed.
[12] The Respondent has requested 7 units for the serving and filing of the Respondent's Record. The Applicants' have submitted that "... 4 units should be the maximum allowed". In Bruce Starlight et al. v Her Majesty the Queen, [2001] F.C.J. 1376 (TO), the Taxing Officer specifically in paragraph [7] dealt with the units claimed for respective assessable services:
[7] The structure of the Tariff embodies partial indemnity by a list of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing a synthesizing of issues leaving relatively straightforward issues for trial. Therefore, 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. If items are a function of a number of hours, the same unit value need not be allowed for each hour particularly if the characteristics of the hearing vary throughout its duration. In this bill of costs, the lower end of the range for item 5 and the upper end of the range for item 6 are possible results. Some items with limited ranges, such as item 14, required general distinctions between an upper and lower assignment in the range for the service rendered.
[Emphasis is mine]
I have reviewed the Court file and it is my opinion that the units requested for this assessable service appear reasonable. Therefore, I allow the 7 units ($840.00) requested for Item 2.
[13] The Applicants note that the Respondent has claimed 13 units for Item 5 which were initially for three separate motions. However, the Respondent revised this unit request in its Amended Bill of Costs filed August 16, 2005 to 7 units to a single contested motion. The Federal Court partially granted the Respondent's motion on August 27, 2004 and ordered that the costs would be in the cause. The Applicants submit that since the Respondent had limited success for this motion the Respondent "...should be allowed only the units at the lower end of the scale, namely 3 units".
[14] I note that under Column III, Tariff B of the Federal Courts Rules, the unit value is for Item 5 is 3 to 7 units for this assessable service. The Respondent had limited success with regards to the relief that was originally sought for this motion and the actual relief that was determined by the Court. I also reviewed the factors to be considered when awarding costs that are outlined in Rule 400(3) of the Federal Court Rules and I considered the case law of Bruce Starlight, supra above. It is my opinion that the assessable units claimed for Item 5 should be reduced to 5 units. Therefore, I allow 5 units ($600.00) for Item 5.
[15] The Respondent has claimed 8 units, 8 units and 8 units respectively for Item 8 (Preparation for an examination, including examinations for discovery, on affidavits, and in aid of execution). These assessable services are claimed by the Respondent for the preparation for examination of Phillip MacDonald and George Gambini and for the preparation for cross-examination of Michael Provan. The Applicants submit that since the Applicants' affidavits were essentially the same it stands to reason that preparation "...for one (affidavit) was every bit preparation for the other". In addition, the Applicants submit that Michael Provan "...is experienced in giving testimony and needed no assistance in his cross-examination" and no units should be allowed for this specific assessable service. For the reasons outlined in this paragraph, the Applicants submit that the total units for Item 8 should be reduced to 2 units.
[16] I cannot agree with the Applicants' submissions regarding the assessable services claimed for Item 8. I have reviewed the transcripts and cross-examinations that are contained in the Court record. It is obvious to me that the Respondent had to prepare for each of the Applicants' examinations and the cross-examination separately since each event involved a different person. Although there were some common elements in each of the transcripts, it is reasonable to me that each event required a variety of work and preparation which justifies a separate claim of 5 units each for Item 8. Therefore, I allow 5 units ($600.00), 5 units ($600.00) and 5 units ($600.00) respectively for each assessable service claimed for Item 8.
[17] The Respondent has claimed 6 units and 6 units respectively for Item 9 (Attending on examinations, per hour) for the separate examinations of Phillip MacDonald and George Gambini. The Applicants note in their submissions that the examinations did in fact take four hours in total on one day to complete. However, the Applicants submit that it "...would be reasonable to assess 1 unit each representing 4 hours total attendance time".
[18] I do not agree with the Applicants' submissions and their request for a reduction in the number of units requested for Item 9. I rely on the reasoning expressed in Bruce Starlight, supra which I note I underlined in paragraph [12] above. In addition, I refer to the decision Sanmamas Compania Maritima SA v. Netuno (The), (1995), 102 FTR 181 (FCTD) which addresses the issue of recovery of costs:
...Under the old regime, the jurisprudence was clear; the parties could not expect to recover all their costs under the tariff relating to party and party costs. However, under the new rule the general philosophy is that party and party costs should bear a reasonable relationship to the actual costs of the litigation.
...
[Emphasis is mine]
It is obvious the examinations took place and in my opinion the Respondent should recover the costs associated with these assessable services. For these reasons, the assessable services claimed for Item 9 are allowed for 6 units ($720.00) and 6 units ($720.00) respectively for each of the Applicants' examinations.
[19] The Applicants have objected to the Respondent's claim for 5 units for item 13(a) (Counsel fee: preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff;). The Applicants have noted that there were no witnesses, this was not a trial and this matter was decided on the merits of the materials contained in the Court record. For the reasons they have outlined, the Applicants submit that only 2 units should be allowed for this assessable service rather than the 5 units that have been claimed by the Respondent.
[20] I do not agree with the Applicants' submissions with regards to Item 13(a). Simply put, the Respondent has claimed for the preparation work that was actually done before the hearing of this judicial review. As outlined in the description of Item 13(a), the actual preparation for a hearing involves a variety of work which is not particularized into any formal list. In my opinion, notwithstanding the Applicants' submissions, the amount claimed is reasonable and 5 units ($600.00) are allowed for this assessable service.
[21] The Respondent has claimed 15 units (3 units X 5 hours) for Item 14(a) (Counsel fee: to first counsel, per hour in Court;) for this assessable service. The Applicants submit that the "...court attendance was from 9:30 a.m. to 11:30 a.m. A reasonable allowance would be 2 units not 15 as requested". I reviewed the Abstract of Hearing and note that the actual time spent in Court was approximately one and one half hours. I agree with the Applicants' submission regarding the actual length of the hearing and I note that it is only reasonable to allow the Respondent some time to check in with the Court Registrar before the hearing and some time to clean up after the hearing. Based on the reasoning that I have outlined in this paragraph, I reduce the Respondent's request for Item 14(a) to 6 units ($720.00) for the hearing of this matter.
[22] The Applicants have made no submissions with regards to Item 25 (Services after judgment not otherwise specified). I will allow 1 unit ($120.00) for this assessable service.
[23] The Applicants' in their submissions have acknowledged that "...a maximum of 2 units is reasonable" for Item 26 (Assessment of Costs). I allow 2 units ($240.00) for this assessable service.
[24] The Applicants have raised a number of concerns with regards to the disbursements claimed by the Respondent. Specifically, the Applicants refer to the courier fees that have been claimed and note that the Respondent "...attends the Federal Court daily and everything listed could have been filed by mail". In addition, the Applicants note that many "...print shops on [sic] Toronto charge far less than $0.15 to photocopy a page". The Applicants submit that there "...is, or should be a duty on the claimant to mitigate its costs".
[25] With regards to the Respondent's specific disbursements, the Applicants have conceded that the transcript fees are reasonable. I also note that two invoices for the amounts of $37.45 and $32.05 respectively which are attached as exhibits to the Supplementary Affidavit of Natalie Henein sworn August 16, 2005 do not appear in the Respondent's Bill of Costs. Therefore, I have not considered or allowed these specific invoices. Regarding the remaining disbursements, I am of the opinion that Respondent has complied with the Federal Courts Rules, Tariff B, section 1(4):
1(4) Evidence of disbursements - No disbursement, other than fees paid to the Registry, shall be assessed or allowed under this Tariff unless it is reasonable and it is established by affidavit or by the solicitor appearing on the assessment that the disbursement was made or is payable by the party.
The Respondent has provided proof of these disbursements in the Affidavit of Natalie Henein sworn August 16, 2005 by attaching as exhibits the photocopies of the invoices that have been paid for courier and photocopies charges. For the reasons I have outlined in this paragraph, the Respondent's disbursements which includes GST are allowed in their entirety for the total of $1,040.16.
[26] The Respondent's Bill of Costs in T-1164-04 is assessed and allowed in the amount of $7,973.76 which includes assessable services of $6,480.00 plus GST ($453.60) and disbursements of $1,040.16 which includes GST. I note the Applicants' solicitor has indicated that the Applicants are each "roughly" responsible for half of the Respondent's Bill of Costs. Therefore, the certificate of assessment issued for $7,973.76 in this Federal Court proceeding reflects that the Applicants, George Gambini and Phillip MacDonald respectively, are apportioned equally costs in the amount of $3,986.88 payable to the Respondent.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
February 23, 2006
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