Date: 20050919
Docket: DES-2-03
Citation: 2005 FC 1282
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND THE SOLICITOR GENERAL OF CANADA
and
ERNST ZUNDEL
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 rendered September 24, 2004, regarding Mr. Zundel's third motion for recusal of the presiding Judge in the proceedings related to the certificate review pursuant to subsection 77(1) of theImmigration and Refugee Protection Act (IRPA), S.C. 2001, C.27. The Applicant sought the recusal based on a reasonable apprehension of bias as well as a number of associated grounds. The Federal Court dismissed this recusal motion and ordered costs in favour of the Ministers.
[2] On October 29, 2004, the Ministers filed a Bill of Costs regarding this motion for recusal as well as supporting material for this assessment. On the same date, the Ministers filed additional Bills of Costs regarding this proceeding in DES-2-03 and associated proceedings A-18-04 and
A-534-04.
[3] After discussions with the parties, a joint timetable was issued for the filing of all supporting materials regarding this proceeding in DES-2-03 as well as A-534-04. All the supporting material was submitted within the time frames by the respective parties. For reasons of simplicity, I have decided to deal with these matters separately, notwithstanding my previous timetable direction. I note Mr. Zundel referred and requested the materials and arguments filed in support of his position on the related Bills of Costs in this proceeding in DES-2-03 as well as A-18-04 be considered part of this assessment. I have considered these latter materials as well as all of the Ministers' materials in assessing this Bill of Costs since in my opinion the proceedings were related.
Mr. Zundel's Position
[4] Mr. Zundel in his Letter of Response dated June 22, 2005 requested his submissions of March 1, 2005 be considered which I have indicated in paragraph [3] I have reviewed. He requests the assessable services claimed by the Ministers under Tariff B, Column III of the Federal Courts Rules be reduced since there is no justification for these amounts. Mr. Zundel submits Item 26 (Assessment of Costs) should only be claimed once since the matters being dealt with in proceeding DES-02-03 were interlocutory in nature and, with the exception of the disbursements, had identical assessable services. In addition, Mr. Zundel objects to the one unit claimed for Item 25 (Services after judgment not otherwise specified) and requests it be disallowed since this was an interlocutory matter and the assessable service claimed "... does not apply as no judgment was pronounced."
The Ministers' Position
[5] The Ministers' representatives submit the two senior counsel assigned to this file were very experienced, which considering the complexity of this matter, justifies their request for the maximum units allowed for the assessable services claimed. The Ministers' representative also submits this proceeding was extremely complex and required a specialization of litigation concerning national security certificates. In addition, the Ministers' representatives in the written submissions of June 22, 2005, indicated "...seeking recovery for the preparation of the bill of costs is acceptable regardless of whether the Order...is interlocutory or not." It is submitted by the Ministers' representatives that they "... were granted costs with respect to the motion for recusal and it is completely acceptable that the Respondents receive costs for preparing the Bill of Costs in the matter." The Ministers submit the six units claimed for Item 26 are not excessive and are completely acceptable.
Assessment
[6] I have reviewed all the pertinent materials in the record and have summarized only those issues which are relevant for the disposition of this assessment in DES-2-03.
[7] I have considered the all the submissions of Mr. Zundel with regard to the Ministers' assessable units as being excessive and I do not agree with that argument. I rely on the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608 that the assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation" and I apply my own discretion accordingly for both parties. It is my opinion that all of the Ministers' unit values for assessable services claimed are reasonable and justified given these specific circumstances with the exception of Item 26 (Assessment of Costs). The Ministers' Bill of Costs was done by way of written submissions and I agree with the submissions that they were relatively simple in nature. For these reasons, I reduce Item 26 to two units ($220.00) and for the reasons I have mentioned above I allow the remaining seventeen units ($1,870.00) for a total of $2,090.00 for assessable services.
[8] I note that, inadvertently, the Ministers appear to have presented the identical Cancor Process Servers invoice #0051/04 of $14.98 as proof of a disbursement in this recusal motion which I have allowed for a related Bill of Costs in DES-2-03. However, I reviewed the Affidavit of Service of Kelly Butler sworn August 20, 2004, that she did serve the Ministers' Record and Authorities on Mr. Zundel's representative. In my opinion, this is actual proof that real dollars were actually expended for this service. Relying on common sense and the affidavit of service mentioned regarding this disbursement, I will allow the $14.98 claimed for process serving fees since they are identical to fees charged for identical work done previously. The Ministers have supported the remainder of their disbursements with the affidavit of Jillian Schneider. The photocopy services with respect to the IKON Office Solutions invoice will be allowed in the amount of $668.93. The Ministers' disbursements are allowed in their entirety to a corrected amount of $683.91 which includes GST.
[9] The Ministers' Bill of Costs in DES-2-03 is assessed and allowed in the amount of $2,773.91 which includes assessable services, a corrected disbursement amount and applicable GST. A certificate is issued in this Federal Court proceeding payable to the Ministers for $2,773.91.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
September 19, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-2-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE SOLICITOR GENERAL OF CANADA
and
ERNST ZUNDEL
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON, Assessment Officer
DATED: SEPTEMBER 19, 2005
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE MINISTERS
Deputy Attorney General of Canada
Peter Lindsay FOR ERNST ZUNDEL
Barrister
Toronto, Ontario
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