Date: 20101223
Docket: T-13-06
Citation: 2010 FC 1329
BETWEEN:
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JOHN REIBIN
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Plaintiff
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and
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HER MAJESTY THE QUEEN
IN THE RIGHT OF CANADA BY
HER REPRESENTATIVE THE MINISTRY HUMAN
RESOURCE DEVELOPMENT
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Defendant
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ASSESSMENT
OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Court dismissed with Column IV costs throughout (the Dismissal Order) this
action for damages further to an alleged disclosure of the Plaintiff’s
medical information by Social Development Canada to a company called Alldata
Corporation.
[2]
There
are instances in the court file of difficulties for the Registry in serving
materials on the Plaintiff, who is self-represented. Counsel for the
Defendant, when presenting the bill of costs for assessment, noted that his
attempted service of the costs materials at the Plaintiff’s address for service
resulted in a notice that the Plaintiff had moved and had not filed a notice of
change of address. Counsel for the Defendant proposed, as Vancouver had been
the Plaintiff’s habitual area of residence except for several months in Fort
McMurray,
that he effect service further to Rule 140(3) of notice of an appointment
for assessment of costs.
[3]
Circumstances
have prompted notice of an assessment of costs further to Rule 140(3): see Machula
v. Canada, [2008] F.C.J. No. 103, 2008 D.T.C. 6095 (A.O.) and Rutledge
v. Canada, [2006] F.C.J. No. 328, 2006 D.T.C. 6141 (A.O.). Here, having
regard to Rule 140(3) which provides that where “a party has no known address
at the time of service, a document that is not required to be personally served
may be served by depositing the document at the office of the Registry where
the proceeding was initiated,” I directed the Registry to post a letter setting
out the timetable for the service and filing of materials by the respective
parties, together with a copy of the Defendant’s materials, and instructions
for its retrieval, on the public notice board in the Vancouver office of the
Registry.
[4]
The
Plaintiff did not retrieve the above materials and has not filed any reply
materials. My view often expressed in comparable circumstances is that the
Federal Courts Rules do not contemplate a litigant benefiting by
having an assessment officer step away from a neutral position 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.
[5]
Paragraph
25 of Cockerill v. Fort McMurray First Nation #468, [2010]
F.C.J. No. 1246 (A.O.) [Cockerill] sets out my general approach for
assessments of costs. I am reluctant in these circumstances to interfere. I
think that the total amount in the bill of costs, except for certain items, i.e.
counsel fee items 5 (preparation for motion) and 6 (appearance on motion)
associated with four interlocutory orders, is generally arguable within the
limits of the award of costs and is allowed as presented.
[6]
The
order dated November 24, 2006 addressing the Defendant’s motion to dismiss the
action awarded costs in the cause. The order dated March 23, 2007 addressing
the Plaintiff’s motion to strike a disclosure awarded costs to the
Defendant. The order dated May 14, 2007 addressing the Defendant’s motion for
re-attendance and production on discovery awarded costs to the Defendant
at the high end of Column III of Tariff B. The order dated March 26, 2008
addressing the Defendant’s motion to dismiss the action awarded costs to the
Defendant.
[7]
Rule
407 provides that, unless “the Court orders otherwise, party-and-party costs
shall be assessed in accordance with column III of the table to Tariff A.” I
accept that Column IV costs can be claimed for the fee item 5 associated with
the Dismissal Order. With respect, I find that the Dismissal Order cannot be
applied to elevate the Column III results in the four orders above to Column
IV: see paras. 34 and 35 of Cockerill above. I have adjusted the
assessed amounts of fee items 5 and 6 as necessary to maximum Column III
amounts.
[8]
The
Defendant’s bill of costs, presented at $20,970.16, is assessed and allowed at $19,890.16.
[9]
Having
regard to Rule 140(3), I direct the Registry to post this decision, together
with a Certificate of Assessment, a copy of the Defendant’s bill of costs as
assessed and instructions to the Plaintiff on how he may retrieve them,
from today until January 28, 2011, on the public notice board of the Vancouver office of
the Registry. I note that this period extends beyond the ten (10) days provided
in Rule 414 for the service and filing of a notice of motion for a review of
the assessment of costs.
“Charles
E. Stinson”
Vancouver,
British
Columbia
December
23, 2010
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