Date: 20031110
Docket: T-561-00
Citation: 2003 FC 1328
BETWEEN:
ELAINE LEVREAULT, ARMAND LEVREAULT
AND SHAILOS LEVREAULT, BY HER LITIGATION
GUARDIAN, ELAINE LEVREAULT
Plaintiffs
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1] The Defendant's motion for summary judgment striking one of the claims by Armand Levreault (hereafter "the Plaintiff") in paragraph 8 of the statement of claim, ie. that his arrest was without basis or foundation, was allowed with costs of the motion payable forthwith and in any event of the cause. I issued a timetable for disposition in writing of the Defendant's bill of costs presented at $1,875.65.
The Plaintiff's Position
[2] The Plaintiff argued that, given the absence of evidence concerning the actual time spent and given the hardship that high costs would impose upon him, 3 - 4 units for item 5 (preparation for the motion) would be sufficient as its materials and issues were not complicated, addressed only a very small portion of the Plaintiff's claim and could have been delayed until trial. The Plaintiff argued that a "forthwith" provision in an order for costs does not in itself justify maximum costs. Further, the Court did not conclude that the Plaintiff should have consented to the Defendant's motion.
[3] The Plaintiff argued that the Defendant cannot claim doubling of counsel fees under item 26 (assessment of costs) because the February 7, 2003 letter was not a settlement offer as contemplated by Rule 420(2)(b) in that it was not an unconditional settlement offer open for acceptance until the hearing of the assessment. Rather, it was merely a proposal that, unless the Plaintiff paid $600.00 in full by February 21, 2003, the Defendant would proceed to assessment of costs and the proposal would be withdrawn. The Plaintiff argued that the assessment of costs was premature in that the Defendant was aware that his remaining claims would still proceed to trial and that he would likely have resolved this matter of costs, but in a longer time frame, because of his limited financial situation, than that imposed by the Defendant's letter. The Plaintiff proposed that the Defendant's costs be limited to $400.00, inclusive of $200.00 for item 26, plus disbursements and that he be granted $200.00 for his costs of the assessment on the basis that the Defendant's claim of $1,875.65 was unduly high and precluded any amicable resolution of costs.
The Defendant's Position
[4] The Defendant argued further to Rules 409 and 400(3)(a)(c)(e) and (o) for the maximum 7 units under item 5 for preparation for the motion, including reply to the Plaintiff's motion record. The specific factors warranting the maximum in the range were (a) reviewing and responding to a number of issues of fact and law in the Plaintiff's motion brief which had not been raised in the Defendant's brief; (b) costs of the motion were made payable forthwith because the Court concluded that the Plaintiff had raised tangential issues irrelevant for resolution of the issues of the motion and (c) the Defendant still had to spend extra time reviewing, considering and replying to these irrelevant submissions.
[5] The Defendant noted the reasonableness in the February 7, 2003 letter of the settlement offer of a reduced amount of $600.00 inclusive of all costs in the February 7, 2003 letter and the absence of any response from the Plaintiff by its February 21, 2003 deadline. The Defendant claimed only 3 units for item 26 from the available range of 2 - 6 units, as well as Rule 420(2)(b) doubling on the basis of the Plaintiff's failure to accept the offer to settle costs.
Assessment
[6] The circumstances of the motion did present some difficulty. A "forthwith" provision for payment of interlocutory costs is not in itself an automatic entitlement to maximum claims in the available ranges for counsel fees. I allow item 5 at a reduced amount of 6 units.
[7] Rule 419 provides that "Rules 420 and 421 apply, with such modifications as are necessary, ... to applicants and respondents in an application...." Often, settlement offers made prior to hearings, whether trials or motions, include provisions for costs. If such settlement offers become relevant further to Rule 420 for the purpose of doubling of counsel fees, the practice has been to not apply doubling to item 26 because the assessment of costs is a quasi-judicial process to crystallize an award of litigation costs. The date of the award of costs is the end point set by Rule 420 for doubling. The assessment of costs is a distinct event in the litigation subsequent to that end point. The decision of the assessment officer is not a judgment or order within the meaning of Rules 419 and 420. The Defendant's February 7, 2003 letter met the threshold for consideration as a settlement offer, but any such consideration is moot because I conclude that Rules 419 and 420 do not address the event of an assessment of costs and I therefore deny Rule 420 doubling. I allow the 3 units claimed for item 26, which I find reasonable. In the circumstances of this assessment of costs, I do not think that Rule 408(3) costs are warranted for the Plaintiff.
[8] The bill of costs of the Defendant for the summary judgment proceeding, presented at $1,875.65, is assessed and allowed at $1,447.65.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
November 10, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-561-00
STYLE OF CAUSE: ELAINE LEVREAULT et al.
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: November 10, 2003
SOLICITORS OF RECORD:
Alain J. Hogue & Associates FOR PLAINTIFFS
Winnipeg, MB
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
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