Date: 20050207
Docket: T-84-03
Citation: 2005 FC 186
BETWEEN:
VICTOR JOHNSTON
Applicant
and
CANADA MORTGAGE AND HOUSING CORPORATION
Respondent
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This assessment of costs is pursuant to an order of the Court rendered June 25, 2004, relating to the Applicant's judicial review of a decision of the Canadian Human Rights Commission (the "Commission") dismissing his complaint against his former employer, the Respondent, Canada Mortgage and Housing Corporation ("CMHC") with costs to the Respondent.
[2] The Respondent filed its bill of costs on July 22, 2004.
[3] A letter was issued setting a timetable for written submissions and supporting material. The Respondent filed a brief with proof of service and the Applicant filed a Reply Affidavit with proof of service.
[4] I note that the Applicant's material in opposition to the Respondent's Bill of Costs, affidavit and written submissions is quite brief. This reply affidavit refers to Rule 400(3), (c) and 400(6) of the Federal Courts Rules, 1998.
Discretionary Powers of Court
400. (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
Factors in awarding costs
(3) In exercising its discretion under subsection (1), the Court may consider
¼
(c) the importance and complexity of the issues;
¼
Further discretion of the Court
400. (6) Notwithstanding any other provision of these Rules, the Court may
(a) award or refuse costs in respect of a particular issue or step in a proceeding;
¼
Much of the applicant's reply affidavit centres on the Court's use of discretion in awarding and allocating costs. The reply affidavit which could assist me in identifying issues does not dispute any of the counsel fees or disbursements.
[5] The Federal Courts Rules, 1998 do not allow an assessing officer to step away from a position of neutrality to act as the litigant's advocate in challenging given items in a Bill of Costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of a judgment and tariff. I have examined the assessable services and disbursements within those parameters.
[6] This assessment of the Bill of Costs is proceeding by way of written submissions. It is my respectful opinion they were quite simple in nature and the Applicant did participate in the filing of materials in opposition to the Respondent's Bill of Costs. I allow all the Items claimed in Tariff A with the exception of Item 26 which I reduce to 2 units ($220.00) for reasons I have outlined in the first two sentences of this paragraph. Respondent is allowed a total of 22 units ($2,420.00).
[7] The Respondent's counsel is claiming disbursements in the amount of $1,852.26. I rely on the reasons of Taxing Officer Charles E. Stinson inGrace M. Carlile v. Her Majesty the Queen, [1997] 97 D.T.C. 5287:
... 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. ...
Further, Phipson on Evidence, Fourteenth Edition (London: Sweet and 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 on the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donation of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd. ...
In my opinion, these comments are equally applicable in this matter and therefore, I allow the entire disbursement of $1,852.26 since in my opinion they appear to be reasonable and justified and supported by an affidavit.
[8] The Bill of Costs in T-84-03 is assessed and allowed in the amount of $4,571.32 which includes assessable services of $2,420.00, disbursements of $1,852.26 and GST of $299.06. A certificate is issued in this proceeding for $4,571.32.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
February 7th, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-84-03
STYLE OF CAUSE: VICTOR JOHNSTON
Applicant
and
CANADA MORTGAGE AND HOUSING CORPORATION
Respondent
ASSESSMENT WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS
REASONS BY: PAUL G.C. ROBINSON
DATED: FEBRUARY 7, 2005
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP
Ottawa, Ontario For the Respondent
Canada Mortgage and Housing Corporation
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