Date: 20050718
Docket: DES-2-03
Citation: 2005 FC 997
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 February 6, 2004, relating to Mr. Zundel's motion for an adjournment of the proceedings in the context of the certificate review pursuant to subsection 77(1) of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, C.27. The Applicant sought to adjourn this review while an appeal was still pending in the Federal Court of Appeal of a previous decision of the Federal Court on a motion for disclosure. The Federal Court dismissed this adjournment motion and ordered one set of costs payable to the Ministers.
[2] On October 29, 2004, the Ministers filed a Bill of Costs regarding this motion for adjournment as well as supporting material for the assessment. On the same date, the Ministers filed additional Bills of Costs regarding file DES-2-03 and associated proceedings in files 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 file DES-2-03 as well as A-18-04. All the supporting material was submitted within the time frames by the respective parties. For reasons of simplicity, I have decided to deal with each of these matters separately, notwithstanding my previous timetable direction which allowed for the filing of supporting material in respect of both Bills of Costs.
Mr. Zundel's Position
[4] Mr. Zundel's representative requests the maximum units of the assessable services claimed by the Ministers under Tariff B, Column III be reduced since there is no justification for these amounts. Inadvertently, it appears that Mr. Zundel's representative refers to the units of Item 26 (Assessment of Costs) as six hours not six units but I am able to understand the argument put forward on this point. On this latter point, Mr. Zundel's representative submits Item 26 should only be claimed once for both files since the Bills of Costs, with the exception of disbursements, are almost identical and the amount claimed appears to be excessive. More specifically, Mr. Zundel's representative objects to the one unit claimed for Item 25 (Services after judgment not otherwise specified) and requests it be disallowed. He submits this was an interlocutory matter and the assessable service claimed "... does not apply as no judgment was pronounced."
The Ministers' Position
[5] It is submitted by the Ministers' representative that this motion for the adjournment "...stemmed from a previous decision ...wherein the Appellant's motion for further disclosure was denied." The Ministers' representatives submit they were successful in the "... series of litigation surrounding the motion for disclosure..." which in turn justifies their claim of 1 unit for Item 25 (Services after judgment not otherwise specified). 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 note the two senior counsel assigned to this file were very experienced, which considering the complexity issue mentioned above, justifies their request for the maximum units allowed for the assessable services claimed. The Ministers' representatives in the written submissions have outlined their attempts to seek payment and described the preparation for this assessment of the Bill of Costs which they submits justifies the claim of 6 units for Item 26 (Assessment of Costs).
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] In reviewing the concerns of Mr. Zundel's representative with regard to the unit amounts claimed by the Ministers, I have relied on the reasons in Bruce Starlight et. al. v. Her Majesty the Queen, [2001] F.C.J. 1376:
...The structure of the Tariff embodies partial indemnity by a listing of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing and synthesizing of issues leaving relatively straightforward issues for trial. Therefore, each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation. If items are a function of a number of hours, the same unit value need not be allowed for each hour particularly if the characteristics of the hearing vary throughout its duration. In this bill of costs, the lower end of the range for item 5 and the upper end of the range for item 6 are possible results. Some items with limited ranges, such as item 14, required general distinctions between an upper and lower assignment in the range for the service rendered.
Although the Ministers have submitted a number of Bills of Costs related to this proceeding and other associated proceedings, I have been able to determine the pertinent points from both parties materials to be considered. It is my opinion that all 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 in my opinion was relatively simple in nature. For these reasons, I reduce Item 26 to 2 units ($220.00) and as mentioned above I allow the remaining 17 units ($1,870.00) for a total of $2,090.00 for assessable services.
[8] With regards to the Ministers' disbursements, I refer to the Federal Courts Rules, Tariff B, subsection (4):
1(4) Evidence of disbursements - No disbursement, other than 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.
Contained within the affidavit of Jillian Schneider are Exhibits "C"and "D" which are photocopies of invoices for associated photocopying and process serving costs. In my opinion, the Ministers' disbursements of $266.50 which includes GST have been established by affidavit, appear to be reasonable and will be allowed in their entirety.
[9] The Ministers' Bill of Costs in DES-2-03 is assessed and allowed in the amount of $2,356.50 which includes assessable services, disbursements and applicable GST. A certificate is issued in this Federal Court proceeding payable to the Ministers for $2,356.50.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
July 18, 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: July 18, 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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