Date: 20000128
Docket: T-578-95
BETWEEN:
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT OF COSTS - REASONS
CHARLES E. STINSON
Assessment Officer
[1] This litigation addressed the Plaintiff"s appeal of a judgment of the Tax Court of Canada concerning the taxability of certain benefits. On July 21, 1998, the Court dismissed the action pursuant to Rule 167 with costs to the Defendant. The Defendant filed a draft Bill of Costs and supporting affidavit, took out an appointment for assessment and served everything on opposing counsel.
[2] Before me, the Defendant"s counsel produced a letter from the Plaintiff"s solicitor of record stating that it was no longer retained on this matter and would not attend on the assessment. The Plaintiff has not taken any steps to remove the solicitor of record. The Defendant argued that the Plaintiff"s solicitor of record was given proper notice of the assessment hearing in accordance with the Rules and that the assessment could therefore proceed. I agreed with the Defendant"s position.
Assessment
[3] The Federal Court Rules, 1998 do not contemplate a litigant, having proper notice of an assessment of costs, but failing to appear, benefiting by an assessment officer abdicating 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 the Tariff. I examined each item claimed in the Defendant"s Bill of Costs and the supporting materials within those parameters.
[4] There are three claims under item B5 for preparation for a contested motion. Two of these, for an extension of time to institute an appeal and for security for costs, resulted in Orders which were silent as to costs. Assessment Officers do not exercise Rule 400(1) authority. That authority is exercised by the Court as part of the disposition of a particular proceeding and must be visible. Therefore, I remove these two items. I allow the Defendant"s Bill of Costs, presented at $2,100.97, at $1,500.97.
"Charles E. Stinson"
Assessment Officer
Dated this 28th day of January, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-578-95
STYLE OF CAUSE:
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 17, 1999
ASSESSMENT OF COSTS - REASONS BY: CHARLES E. STINSON
DATED: January 28, 2000
APPEARANCES:
No one for the Plaintiff
Shameem Rashid for the Defendant
SOLICITORS OF RECORD:
Mack, Kisbee & Nicholson
Oshawa, Ontario for the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the Defendant
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