[1] The Plaintiff, represented by counsel, brought this action to appeal a decision of the Canadian International Trade Tribunal, in part on the basis that said tribunal had erred in not allowing the raising of a constitutional argument. During the pre-trial proceedings, Sheldon Kates, an officer of the Plaintiff, asserted that he wished to raise constitutional issues. Subsequently, the Plaintiff's counsel sought and was given leave to be removed from the record. Mr. Kates, a lay person, sought permission to represent the corporate plaintiff, but the Court denied his motion, directed that the action would stand dismissed for delay and want of prosecution if the corporate plaintiff failed to retain and instruct counsel within 20 days and ordered costs of the motion payable to the Defendant in the cause. The corporate plaintiff did not subsequently enter new counsel on the record. I issued a timetable for written disposition of the Defendant's bill of costs.
[2] Mr. Kates asserted that his capacity to focus on issues of costs was so impaired by his current period of mourning that he could not proceed. As well, he asserted an intention to move for an extension of time to appeal the above-noted decision. Subsequently, Mr. Kates indicated that he would not be responding to the matter of costs, but would still pursue the substantive issues of the action.
[3] In the context of the materials on the court file, including those preceding the filing of the bill of costs, I do not find the responses of Mr. Kates to be relevant. Effectively, the absence of any relevant representations on behalf of the Plaintiff which could assist me in identifying issues and making a decision leaves the Defendant's bill of costs without any reasoned opposition. My view, often expressed in comparable circumstances, is that the Federal Court Rules, 1998 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, i.e. those outside the authority of the judgment and the tariff.
[4] I examined each item claimed in the bill of costs and the supporting materials within those parameters. The amount claimed in total in the bill of costs is generally arguable within the limits of the award of costs as reasonable in the circumstances of this litigation. However, there is one thing requiring intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs. Specifically, likely through inadvertence, the Defendant has applied a unit value of $112.85, being the result of the calculation performed on March 15, 2002 by the Chief Justice of the Federal Court of Appeal per Tariff B4(1). However, Tariff B4(2) required that said result of $112.85 be rounded down to $110.00: I have adjusted the items claimed in the bill of costs accordingly. Further to Rule 408(3), the Defendant requested three units under item 26 for this assessment of costs, which I allow. The Defendant's bill of costs, presented at $2,279.00, is assessed and allowed at $2,552.00.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
August 10, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2957-94
STYLE OF CAUSE: Kates & Company v. HMQ
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL
APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS BY: CHARLES E. STINSON
DATED: August 10, 2004
SOLICITORS OF RECORD
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Morris Rosenberg
Deputy Attorney General of Canada
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FOR THE DEFENDANT
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