Date: 20001006
Docket: T-1215-98
BETWEEN:
JEFFREY M. WHYTE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
Assessment Officer
[1] This application was allowed with costs by Madam Justice McGillis on October 27, 1999. Ms. Jodi Whyte, the solicitor for the applicant, filed her bill of costs on August 30, 2000 and requested it to be assessed without the personal appearance of parties. Mr. Bruce MacNaughton, who is acting on behalf of the Attorney General, filed written submissions on September 11, 2000.
[2] On September 26, 2000 Ms. Whyte filed her written representations in support of the bill of costs along with an affidavit of Elizabeth Finnan. Ms. Finnan indicated that the applicant had not been served with any material from the respondent. Out of courtesy and fairness the Registry faxed a copy of Mr. MacNaughton's submissions to Ms. Whyte who replied by filing a response on September 27, 2000.
[3] It is Mr. MacNaughton's overall position that certain costs claimed by the applicant are excessive because the applicant had made the same arguments before the Superior Court of Ontario on an earlier occasion. However, I share Ms. Whyte's view that the proceeding in the Superior Court is not relevant to the issue of costs in this matter.
[4] Counsel for the applicant is claiming 5 units under item1. The respondent's position is to award nothing for the swearing of the applicant's affidavit. It is my opinion allowing 5 units within a range of 4 to 7 units is appropriate for this type of service. Under item 2 the applicant claims 7 units. This must be disallowed because only respondents are entitled to claim for this service. One unit is requested for the preparation of a motion to adjourn the hearing. As pointed out by Mr. MacNaughton the motion was sought by the applicant. The Order granting the adjournment being silent as to costs the assessment officer is without authority to consider this item [see the provisions of Rule 400(1)].
[5] Counsel for the respondent objects to the allowance of 3 units under item 8 for the preparation of the applicant's affidavit. I think it is reasonable to grant this item as submitted considering that the range in Tariff B is from 2 to 5 units. Ms. Whyte asks for 5 units for item 13 for preparation for hearing. I will use my discretion to reduce it to 4 units, keeping in mind the accepted principle of partial imdemnity. The amount of $150.00 for counsel fees (item 14) is allowed. However, there are two separate claims under item 15 (3 and 4 units respectively); these must be refused in the absence of a specific direction from the Court as required by the Tariff. The claim under item 20 (requisition for hearing) applies strictly to the Court of Appeal proceedings and cannot be allowed in matters before the Trial Division. Finally, the 2 units sought to assess costs are granted to the applicant.
[6] Moreover, the disbursements listed in the bill of costs total the amount of $203.58 for such expenses as telephone charges ($5.51); photocopies ($116.50); facsimile charges ($5.35) and $76.52 to effect service of documents. Mr. MacNaughton querries the amount requested for photocopies and for the service of documents. He mentions that all documents were served upon counsel for the respondent and should not have incurred any costs. I do not agree. These expenses appear to have been most reasonable in the circumstances and do not require an absolute proof. I will allow them as presented.
[7] The applicant's bill of costs will be assessed and allowed in the amounts of $1,550.00 for assessable services and $203.58 for disbursements. A certificate of assessment will issue in the amount of $1,753.58.
Halifax, Nova Scotia
October 6, 2000 François Pilon
Assessment Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
Docket: T-1215-98
JEFFREY M. WHYTE
-and-
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: François Pilon, Assessment Officer
DATE OF REASONS: October 6, 2000
SOLICITORS OF RECORD:
Ms. Jodi Whyte
Kingston, Ontario for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent
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