Genest v. Malécite de Viger First Nation Band Council, 2004 FC 1559

Date: 20041104

Docket: T-1117-03

Citation: 2004 FC 1559

BETWEEN:

                                               JEAN GENEST and ALINE JENNIS

                                                                                                                                           Applicants

and

MALÉCITE DE VIGER

FIRST NATION BAND COUNCIL and

ANNE ARCHAMBAULT, in her capacity as

Grand Chief of the Malécite de Viger First Nation

                                                                                                                                      Respondents

                                            ASSESSMENT OF COSTS - REASONS

DIANE PERRIER - ASSESSMENT OFFICER

[1]        The applicants filed a discontinuance of their application for judicial review on March 1, 2004. The respondents are thus entitled to costs in accordance with Rule 402 of the Federal Court Rules, 1998.

[2]        Pierre Giroux filed the respondents' bill of costs on July 5, 2004 and asked that it be assessed without an appearance by the parties.

[3]        A letter was sent to the parties fixing a schedule for the filing of their submissions. To date no written submissions have been filed and I will now proceed to assess the costs based on the documentation in the record.

[4]        The fees requested are allowed in the amount of $7,212.07 ($6,070 plus taxes) for the following items: item 8 (6 examinations at 3 units and 2 examinations at 5 units), item 9 (3 units per hour for a period of 9 hours) and item 26 (2 units). We have disallowed the claim made under item 7, as that item is used to compensate services rendered under Rules 222 et seq. of the Federal Court Rules, 1998 dealing with the discovery of evidence in the case of an action. For item 9, attending on examinations per hour, we have only allowed fees for one counsel, as that item compensates services by counsel rendered in general and by analogy to item 14(a), which only allows fees for the presence of the first counsel. For the assessment of costs, we allow 2 units since the proceeding was not opposed.

[5]        Disbursements are awarded in the amount of $4,508.64 as they were established by Monique Bourgoin's affidavit and the attached exhibits. However, for the fees of the returning officer, I consider it is reasonable to allow compensation under Tariff A 3(3), awarded to witnesses for loss of earnings, namely one day for attending the examination and two days for travelling from Alma to Québec. Accordingly, we allow the sum of $732.48 ($34.88 x 7 hours x 3 days).

[6]        The bill of costs is accordingly assessed and allowed in the amount of $11,720.71. An assessment certificate will be issued in this amount.

QUÉBEC, QUEBEC

November 4, 2004

Certified true translation

Jacques Deschênes, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-1117-03

STYLE OF CAUSE:                                                   Jean Genest and Aline Jenniss

v.

Malécite de Viger First Nation Band Council

and

Anne Archambault in her capacity as Grand Chief of the Malécite de Viger First Nation

ASSESSMENT OF COSTS WITHOUT PERSONAL APPEARANCE

PLACE OF ASSESSMENT:                                      Québec, Quebec

REASONS BY: DIANE PERRIER, ASSESSMENT OFFICER

DATED:                                                                      November 4, 2004

APPEARANCES:

Turgeon, Lavoie                                                            FOR THE APPLICANTS

Québec, Quebec

Tremblay, Bois, Mignault, Lemay                                   FOR THE RESPONDENT MALÉCITE

Québec, Quebec                                                           DE VIGER FIRST NATION BAND

COUNCIL

Martin, Camirand, Pelletier, S.E.N.C.                            FOR THE RESPONDENT

Montréal, Quebec                                                         ANNE ARCHAMBAULT