Decker v. Canada (Attorney General), 2005 FC 688

Date: 20050512

Docket: T-1124-03

Citation: 2005 FC 688

BETWEEN:

                                                               KEVIN DECKER

                                                                                                                                            Applicant

                                                                           and

                                            ATTORNEY GENERAL FOR CANADA

                                                                                                                                        Respondent

                                            ASSESSMENT OF COSTS - REASONS

WILLA DOYLE

Assessment Officer

[1]                This application for judicial review of the decision of the Honourable Robert G. Thibault, the Minister of Fisheries and Oceans, was allowed with costs to the applicant.

[2]                Mr. Jerry Wetzel, counsel for the applicant, filed his Bill of Costs on January 26, 2005 and confirmed disposition of the assessment was to be without the personal appearance of    the parties.

[3]                I issued a timetable for written submissions and supporting materials. Mr. Reinhold Endres, Q.C., counsel for the respondent, filed the respondent's submissions in opposition on February 17, 2005.    On March 4, 2005, counsel for the applicant filed his rebuttal submissions. However, included in the applicant's rebuttal submissions was also a March 4, 2005 affidavit supporting the disbursements previously listed.

[4]                Relative to the above sequence of events, the respondent was now deprived of an opportunity to address the issues covered by this new affidavit.    I sent directions to both counsel. I extended to the respondent an opportunity to reply to this new affidavit of the applicant and to the applicant I extended an opportunity to provide a rebuttal, if any, to the reply of the respondent.    The respondent was given until April 12, 2005 to reply and the applicant was given until April 26, 2005 for a rebuttal, if any. Both parties made submissions.

[5]                The applicant's position is that the Bill of Costs had been prepared in accordance with the Federal Courts Rules and that the applicant should have his costs.

[6]                The respondent's position as noted on paragraph nine of his initial submission stated

" . . . the proposed Bill of Costs is very excessive . . . "

[7]                I will outline my reasoning for allowing or disallowing certain items in their order of presentation in the Bill of Costs.

[8]                Item 1 Originating Notice and Application.

The applicant is seeking seven units. The range for this item is four - seven.    The respondent's position is that the judicial review application itself was rather uncomplicated and proposed that five, not seven, be an appropriate number of units and also noted that the applicant's written submission in regard to legal argument covered 17 pages and cited three authorities. The applicant countered, given that the Tribunal (the Atlantic Fisheries Licence Appeal Board) had kept no record, thus requiring the applicant to reproduce some 163 pages of exhibits originally presented before the tribunal. In total, the applicant's record consisted of 571 pages.    In view of these unusual circumstances, the seven units, as requested, will be allowed.

[9]                Item 5 and 6

I will address these items together:    Item 5 - Motion to Extend Time¼ Preparation of Motion and Materials . . . and Item 6 - Appearance on Motion. The applicant is requesting seven units and two units respectively.    It is a well-established principle that where an order is silent with respect to costs, it implies that there is no visible exercise of the Court's discretion under Federal Courts Rule 400(1). Reference may also be made to a relevant passage in Orkin, the Law of Costs (2nd Ed.) 1998 par. 105.7:

"Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at trial with no mention of costs, it is as though the judge had said that he saw fit to make no order as to costs."

Consequently, since no costs were awarded further to this application, both items 5 and 6 are deleted and no units will be allowed for either of these two items.

[10]            Item 13 Preparation of Judicial Review.

The respondent correctly noted that the maximum number of units allowed is five. The applicant is claiming seven.    In the applicant's rebuttal submission,    he recognizes that seven must be a typographical error and stated that since five units is what the Tariff Column III permits for that item then five units should be allowed for preparation for the hearing in this matter given the respondent's extensive record.    The respondent suggested that a reasonable number of units, given the level of complexity, is three.    I conclude that four units will be allowed.

[11]            Item 14 Appearance on Judicial Review.

The applicant is requesting seven units. The respondent proposes that three hours x two units would be a reasonable assessment and noted that oral argument was completed during one-half day of court time. Upon my review of the abstract of hearing, I note the Court registrar has recorded that the hearing began at 9:30am and concluded at 1:00pm. That is equivalent to 3.5h (3.5 x 2 units = 7). The seven units, as requested, will be allowed for this item.

[12]      Item 15 Preparation and Filing of Written Assignment.   

The preparation and filing of written argument are included under Item 1. Item 1 is intended to compensate parties for the preparation and filing of their Application Record, the entire record as set out in Rule 309 of the Federal Courts Rules, not just a portion of it. Item 15 provides for    "Preparation and filing of written argument, where requested or permitted by the Court."    I conclude, as that t is not the case here, no units shall be allowed for this item.

[13]      Item 25 Services after judgment.

The applicant requested two units for this item while counsel for the respondent proposes one unit and based his determination "on account of the preparation of the Bill of Costs."    I note that Column III of Tariff B provides for a maximum of one unit for item 25. I allow one unit for this item and rely on the wisdom of Assessment Officer Pilon in Richards v. Canada (Minister of National Revenue - M.N.R.) [2005] F.C.J. No. 334 where he states;

"My own experience is that assessment officers allow the single unit without the need for supporting evidence because we assume that lawyers communicate and discuss judgments of the Court with their clients, thus incurring costs."

[14]       Item 26 Assessment of costs.

The applicant is claiming two units which is the lowest number of units for Column III of Tariff B for Item 26. The respondent contends that "this is already covered by the proposal of the respondent with regard to item 25 . . . " Respectfully. I do not agree.    I believe this item stands alone. Considering the assessment was done in writing with written rebuttal materials provided, I allow, as requested, the two units.

[15]       Item 28 Services by a paralegal.

The applicant requests three units for this item. The respondent conversely proposes that the claim should be disallowed on the basis that it is not evident how the work of the paralegal reduced the chargeable work of counsel.    In paragraph 23 of the applicant's rebuttal material, the applicant specifically addresses the issue of the services of a paralegal stating ". . . the applicant utilized services of a paralegal in the applicant's solicitor's law offices to conduct online research; copy all the necessary documentation; sort all the necessary documentation and tab all the necessary documentation that was submitted in this matter . . . " I am mindful of this statement by the applicant where he particularly repeats the phrase ". . . all the necessary documentation . . . " in describing the services related to documentation submitted in this matter. Respectfully, I conclude, given this statement by the applicant concerning "all necessary documentation that was submitted" would therefore necessarily include documentation relative to items five and six which were claimed by the Applicant on a motion for which the court was silent as to costs.    It would be improper to indemnify the applicant with regard to services of his paralegal for items that clearly no units could be awarded. In this specific circumstance, where the applicant has clearly identified the tasks performed by the paralegal, it would appear that some of the items included do not warrant a unit value. Consequently, I must reduce the number of units from the three units requested to two units. Clearly, the work of the paralegal did reduce the chargeable work of counsel on the allowable assessable items.

[16]      Disbursements

Again for clarity, I will address each item as it appears on the disbursement page of the bill of costs.    As noted by the counsel for the respondent, when the Bill of Costs was filed,    counsel for the applicant had not included an affidavit. This is contrary to item 1. (4) of Tariff B which reads;

Evidence of disbursements - no disbursement, other that 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.

[17]       As noted at the outset of my reasons in paragraph [3], the ill-timed filing of the applicant's affidavit in support of claimed disbursements did not allow the respondent an opportunity to address these issues.    I directed that both counsel should have an opportunity to respond.    Both parties put forward further submissions. These commentaries are incorporated in my reasoning on this taxation.

[18]      The first item is photocopying (1,816 pages @ $0.35/page).    The respondent objected to the claim for photocopies and argued that the amount was excessive and that the supporting evidence was insufficient. The applicant in his affidavit countered that his claim was based on his cost for paper, the maintenance agreement on the copier and replacement costs which he stated equals approximately 15cents per page. He further remarked that he bills his legal assistants time for copying at $30.00 per hour. Together, he said that this equals .35cents per copy, which is what he charged throughout.

[19]       I reviewed the claims entered under the heading "photocopying" and find there are two entries that cannot be accepted. The first claim is for copying of the decision (22 pages x three copies x 35 cents = $23.10 ). Here, I refer counsel to the Court in Diversified Products Corp. v. Tye-Sil Corp. (1990), 41 F.T.R. 227, 34 C.P.R. (3d) 267 (T.D.)

"The item of photocopies is an allowable disbursement only if it is essential to the conduct of the action. Therefore, this is intended to reimburse a party for the actual out-of-pocket cost of the photocopy. The $.25 charge by the office of Plaintiffs' counsel is an arbitrary charge and does not reflect the actual cost of the photocopy. A law office is not in the business of making a profit on its photocopy equipment. It must charge the actual cost and the party claiming such disbursements has the burden to satisfy the Taxing Officer as to the actual cost of the essential photocopies."

[20]       The second entry in this section refers to the motion to extend time (51 pages x 5 = 225 x 35cents = $78.75). As previously noted in paragraph [9] of my reasons, the costs are at the respective Court's discretion and where an order is silent with respect to costs, it implies that there is no visible exercise of the respective Court's discretion under Rule 400(1). The Court had not awarded costs on the motion and, therefore, no associated costs may be awarded here for the claim for the photocopying. The 51 pages x 5 = 225 x 35cents = $78.75 do not form part of the allowable disbursements.

[21]       Also, in relation to the specific cost of 35 cents per page in the claim for photocopies,    I refer to Assessment Officer Martin in Bernard v Canada (Attorney General)[2003] F.C.J. No.705 where he stated

" The cost of 40 cents a page is provided in the Federal Court Rules. However, it is common practice for the assessment officer to grant an amount of 25 cents per page on an assessment of costs. ..."

[22]       Based on my above reasoning, as set out in paragraphs [18-21] inclusive, I reduce the photocopying claim from $635.60 and allow the amount of $381.25.   

[23]       I will address the next three claimed disbursements collectively namely binding of all documents, telecopier and long-distance and, telephone long-distance. I allow $214.79 total for these three items. I adopt the reasoning of Taxing Officer Stinson in the case of Carlile v. Canada ( Minister of National Revenue - M.N.R.) [1997] F.C.J. No.885 where he states the following;

"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. This presumes a subjective role for the Taxing Officer in the process of taxation. My Reasons dated November 2, 1994, in T-1422-90: Youssef Hanna Dableh v. Ontario Hydro cite, [1994] F.C.J. No. 1810, at page 4, a series of Reasons for Taxation shaping the approach to taxation of costs. Dableh was appealed but the appeal was dismissed with Reasons by the Associate Chief Justice dated April 7, 1995, [1995] F.C.J. No. 551, . I have considered disbursements in these Bills of Costs in a manner consistent with these various decisions. Further, Phipson On Evidence, Fourteenth Edition (London: Sweet & 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 as the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donations of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd. I concluded that, for certain items i.e. facsimiles and, photocopies, an amount less than presented, but more than zero dollars, captured the indemnification appropriate in these circumstances. Computerization of office routine in recent years has made the isolation of certain expenses, by client, possible. "

[24]       The next disbursement claimed is courier charges of $200.38. It appears, upon checking the dates in relation to documents filed with the Court, some of the receipts appear to be in reference to a motion for which no costs were awarded and another is in relation to the acceptance of filing of an affidavit out of time. Counsel for the Respondent proposes that $100.00 be allowed. I accept that amount as reasonable in these circumstances and the      $100.00 is allowed for courier charges.

[25]       The next disbursement is for court filing fees. I accept $100.00 for this disbursement based on the evidence of the $50.00 filing fee for the notice of application and the $50.00 filing fee for the requisition for hearing. I allow the $100.00 for court filing fees.

[26]       At this point in the disbursements, the following information appears: " Subtotal $6,083.53, HST $ 912.53, Total $6,996.06." At the outset, I will move the $100.00 court filing fee entry out of any subtotal at this point. HST is calculated in the remittance to the Registry, and there is no accessory charge for tax.    Based on my determinations reached and explained in the preceding paragraphs, I will now amend the original figures to read: " Subtotal $3,226.04, HST $ 483.91, Court filing fees $100.00, Total $3,809.95."

[27]      The next two entries presented under travel are for mileage. One entry is for the applicant, Kevin Decker, and the second entry is for counsel for the applicant. However, the travel claim for the applicant, Kevin Decker, is unsupported by authority. Mr. Decker was represented by counsel on a judicial review where no new evidence or witnesses may be engaged.    Mr. Decker's attendance was not relevant to the outcome of the judicial review in that he was not required to be present. Therefore, any travel costs related to Mr. Decker must be disallowed.   

[28]       The second entry presented under travel is mileage For Mr. Wetzel, counsel for the Applicant. Here, the respondent argues that:

"...Respondents' counsel travelled from Nova Scotia to St. John's, the day prior to the hearing, without difficulty. Accordingly, if accommodation charges are allowed, only one nights' stay should be assessed . . . "

Mr. Wetzel clearly stated in his affidavit that he travelled from Conne River to St. John's and return for this particular hearing. In exhibit 11 of his affidavit, sworn on the 3^rd of March 2005, he does provide evidence of an open and active office maintained by his law firm in Conne River.    Mr. Wetzel provided a sworn statement that he did travel from his office in Conne River to St. John's and back, stating in the Bill of Costs the total distance travelled to be 1,120 kms. The distance from Conne River to St. John's is confirmed by a search on Mapquest.    In my respectful opinion, I believe the trip would require perhaps a six and one-half or seven-hour drive each way. Therefore, the second night's accommodation for counsel was necessary and prudent considering the distance

from Conne River to St. John's.    I allow the entry of $526.40 ( 1120 kms x $0.47 per km) for travel for the applicant's counsel.

[29]       In relation to the hotel charges for Mr. Decker, I apply the same logic as in paragraph [27].    Mr. Decker's attendance was not relevant to the outcome of the judicial review in that he was not required to be present. Therefore, any travel costs related to Mr. Decker must be disallowed.

[30]       In relation to the hotel accommodation, counsel for the respondent asked that $16.32 be deducted from hotel expenses since meal expenses are claimed within the meal allowance. The applicant conceded readiness to strike the restaurant room charges of $8.99 and $7.33, since they are claimed as part of meals and incidentals at the federal government rate. The hotel entry for Mr. Wetzel will be allowed with the reduction as noted. The hotel accommodation for applicant's counsel is allowed at $269.04.

[31]       In relation to the meals and incidentals for Mr. Decker, again I apply the same logic as stated in paragraph [27].    Mr. Decker's attendance was not relevant to the outcome of the judicial review in that he was not required to be present. Therefore, any travel costs related to Mr. Decker must be disallowed.

[32]       I accept the meals and incidentals for Mr. Wetzel as claimed at $146.20 based on the necessity of the second night and the distance stated as traveled.

[33]       This brings us to another subtotal on the disbursements' page of the Bill of Costs: "Subtotal $1,347.78, HST $ 202.17, Total $1,549.95." This set of figures is therefore now amended to read as follow: "Subtotal $ 941.64, HST $ nil, New sub total $941.64." I disallowed any HST, since for the items enumerated (mileage, hotel and meals), HST is already calculated in these amounts (mileage, hotel and meals) when payment is made. The HST is paid at the time of use of goods and services to the original service provider whether it is at a gas station, a hotel, or a restaurant.

[34]       Counsel for the respondent states in paragraph 31 of his submission that "There is no HST chargeable on the items under Tariff B." Respectfully, I do not agree.    I offer in support of my position the reasoning of Assessment Officer Stinson in Englander v. Telus Communication Inc. [2004] F.C.J. No. 440 in which he states;

"Tariff B1(3)(b) of the Federal Court Rules, 1998 expressly provides for "any service, sales, use or consumption taxes paid or payable on counsel fees or disbursements". Further, it would be prohibitively expensive for the Court to investigate accounting practices and tax returns of each party appearing before it to determine whether GST "flowed through" a certain party at a certain time. Cases such as Launière v. Canada (Attorney General), [2002] F.C.J. No. 1505 (A.O.) confirm that GST is routinely allowed..."

[35]      The Bill of Costs presented at $8, 546.01 is assessed and allowed in the amount of $4,751.59 which includes assessable services, disbursements and applicable HST (Harmonized Sales Tax), known also in other jurisdictions as GST (Goods and Services Tax).    A certificate is issued in the Federal Court proceeding for $4,751.59.

                                                                                                                             "W. Doyle"                         

                                                                                                                               Assessment Officer            

Fredericton, New Brunswick

May 12, 2005

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1124-03

STYLE OF CAUSE:                          Kevin Decker

- and -

Attorney General for Canada

DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

ASSESSMENT OF COSTS:            Willa Doyle

DATED:                                             May 12, 2005

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: