Canada (Minister of Citizenship and Immigration) v. Ahmed, 2005 FC 1171

Date: 20050825

Docket: T-1748-04

Citation: 2005 FC 1171

BETWEEN:

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                               Plaintiff

                                                                         - and -

                                                        OSMA OSMAN AHMED

                                                                   also known as

                                                 ASSAMA OSMAN ABOSHMMA

                                                                                                                                           Defendant

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                The Court, by way of default judgment, declared that the Defendant had obtained Canadian citizenship by false representation, by fraud or by knowingly concealing material circumstances. Costs were awarded to the Plaintiff on a solicitor-and-own-client basis. I issued a timetable for written disposition of the Respondent's amended bill of costs.

[2]                The Defendant did not file any materials in response to the Plaintiff's materials. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping 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, ie. those outside the authority of the judgment and tariff. I examined each item claimed in the amended bill of costs and the supporting materials within those parameters.

[3]                The amended bill of costs is not framed in a solicitor-client format, but in a party and party format using Column V ranges. The supporting evidence indicates that the Department of Justice did not bill its client, the Minister of Citizenship and Immigration, on an hourly basis and that there being no practical way to determine solicitor-client fees for this matter, the Plaintiff's counsel decided that it would be appropriate to claim Column V costs. The Plaintiff's counsel argued that analysis of Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405, [2002] S.C.J. No. 13 (S.C.C.) and Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc., [2003] 2 F.C. 451, [2002] F.C.J. No. 1504 (F.C.A.) supports this application of the party and party tariff to approximate solicitor-client costs. With respect, I cannot agree given my experience over the years. The Department of Justice Act, s. 5(d) provides that the Attorney General of Canada "shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada." It is not unusual in the public sector that the professional relationship of the Department of Justice with given clients is not a function of hourly rates for the services of counsel, in a manner akin to private sector practice. The lawyers in the Department of Justice are salaried public employees.

[4]                My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (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. 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.

[5]                The amended bill of costs presents $3,398.52 consisting of $2,880.00 and $518.52 for fees and disbursements respectively. From the sole perspective of amount, I think that my considerations of reasonableness of $3,398.52 as a simple total for necessary solicitor-client costs to achieve success in the circumstances of this litigation would have been similar with or without the benefit of invoicing records. Certainly, hard evidence would have been preferable, but I am not inclined to refuse some sort of assessment. I think that the claimed amount of $3,398.52 is reasonable for the work required by this matter and I allow it as presented.

(Sgd.) "Charles E. Stinson"

      Assessment Officer            

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1748-04

STYLE OF CAUSE:                          THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

- and -

OSMA OSMAN AHMED

aka ASSAMA OSMAN ABOSHMMA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                     CHARLES E. STINSON

DATED:                                                                                  August 25, 2005

SOLICITORS OF RECORD:

John H. Sims, Q.C.                                                                   FOR PLAINTIFF

Deputy Attorney General of Canada