Date: 20100217
Docket: T-1373-09
Citation: 2010 FC 165
BETWEEN:
VINCENZO DEMARIA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS – REASONS
Johanne Parent
Assessment Officer
[1]
The
respondent’s Bill of Costs in this matter was filed November 20, 2009 further
to the filing of a Notice of Discontinuance. A timetable for the written
disposition of the assessment of the respondent’s Bill of Costs was issued on November
30, 2009 and sent to both parties. The respondent filed a revised Bill of Costs
on December 21, 2009 together with an affidavit and written submissions. The
applicant provided written arguments in the prescribed timeframe.
[2]
On
September 21, 2009, the applicant discontinued its application for “writ of
prohibition, declaratory relief and injunction to prohibit Correctional Service
of Canada from utilizing allegations obtained from the Combined Forces Special
Enforcement Unit of Greater Toronto”, originally filed on August 18, 2009. At
the onset of the proceedings, the applicant further filed a motion for an
interlocutory order claiming very similar relief to the main application and requesting
an urgent hearing date. A few days later, a Notice of constitutional question
was served and filed. The Court delivered directions setting the time for a
teleconference to discuss scheduling matters as well as the issue of urgency.
This videoconference was followed with directions from the Court to the parties
setting a timetable to file materials in support and in response. The Court
further delivered an Order fixing the time for the hearing of the interlocutory
injunction and confirming that this motion would be heard at the same time as
the interlocutory injunction in Court file T-1374-09. A few days before these interlocutory
hearings were to proceed, the discontinuance was filed.
[3]
As
communicated early in the process by way of written communication to the Court
and to the applicant, it is the respondent’s position that these proceedings
were premature, without merit and unnecessary. Had the applicant allowed the process
to follow its normal course, none of the steps taken would have been necessary,
unless the applicant was dissatisfied with the decision of the National Parole Board
and at that time, a judicial review process could have had been brought before
the Federal Court. It is the respondent’s position that the applicant did not
gain anything by proceeding as he did. The respondent asks that the following
factors set in Rule 400(3) of the Federal Courts Rules be considered in
assessing costs:
(a) The
result of the proceedings: It is the respondent’s position that the proceedings
were resolved in its favour and the motions and application were premature.
(b) The
importance and complexity of the issues: The law was clear and the proceedings,
premature. They were made complex by the unnecessary and onerous steps taken by
the applicant.
(c) The
amount of work. The review of the eleven affidavits and exhibits filed by the
applicant along with the preparation of the Agreed Statement of fact and law
required time and effort by counsel for the respondent. Considerable time was
expended researching and drafting submissions on the application and motions
that were either abandoned or withdrawn.
(d) The conduct of the party: From the respondent's view point, the applicant
unnecessarily lengthened this matter which could have been resolved at a much
earlier stage.
In rebuttal, the
respondent confirmed that it did not file any documents or affidavits in
response to these proceedings. Counsel maintains that the procedures
before the Federal Court did not serve any purpose as the applicant had already
been provided all the evidence contained in the Agreed Statement of fact and
law independent of the Court proceedings.
[4]
The applicant concedes that the Assessment Officer has
jurisdiction to allow costs further to the discontinuance of the matter but
that five units would be a reasonable number for the entire application. The
applicant submits that a strict application of the Tariff is justified
considering the “important liberty interest at stake”. Bearing in mind the
context and the reasons for which the application was originally brought, the
applicant considered the following in the analysis of the factors enumerated in
Rule 400(3):
(a) The result of the proceeding: From the applicant’s viewpoint, he was
ultimately successful as he was released from imprisonment. This was achieved
through the Court proceedings which enabled him to properly prepare his defence
before the National Parole Board.
(b) The importance and complexity of the issues: Both parties agree that
this matter was not complex. The importance of the issues was, however,
extremely serious for the applicant.
(c) The amount of work: The applicant prepared eleven affidavits along
with the application and motion material for interlocutory relief, all of which
were abandoned or discontinued before the deadline for the responding material occurred.
The respondent did not file any documents or submissions save for the Notice of
Appearance.
(d) The conduct of the party: The applicant submits that his conduct did
not necessarily lengthen the proceedings since actual results were achieved
further to the steps taken throughout the proceedings.
[5] The materials submitted by both
parties assisted me greatly in explaining the work performed in the context of
this file. However, it is not for the assessment officer to decide on the
substance or merit of a case. In assessing costs, my role is clearly defined by
Rules 402, 405 and 407 and Tariff B of the Federal Courts Rules.
Further, Rule 409 allows the assessment officer, in assessing costs, to
consider the factors referred to in subsection 400(3). In the absence of a
specific Court decision ordering otherwise or an agreement by the parties, Rule
402 allows the respondent to have its costs assessed.
[6] I recognize that these
proceedings involved a substantial amount of work in a very short time frame.
Both parties admit that this matter was not of great complexity although of
more significance for the applicant. I am mindful of the time constraints the
parties were dealing with but am not convinced that that all steps taken were
ultimately necessary to achieve actual results.
[7] The respondent claims four Units
under Item 2 for the preparation of its Record. It has been recognized by both
parties that this document was never served or filed. As such, the respondent
did not provide any evidence that any documents in response were ever initiated i.e. table of
content, index. The only document in support of this claim is a detailed
statement of account giving information on dates, counsel’s names and hours
worked on this file providing “legal opinion/advice”. Again, I do not doubt that
a lot of effort was expended dealing with this file but I cannot lawfully allow
units for the preparation of a Record for which no evidence exists.
[8] With regard to the claim made
for the preparation and filing of a contested motion (Item 5), I note that the
Court did not order costs on any of the motions found on file. In Janssen-Ortho
Inc. and Daiichi Pharmaceutical Co., Ltd v. Novopharm Limited, 2006 FC
1333, the Court determined that, “any pre-trial order that is silent as to
costs means that no costs have been awarded to any party”. Consequently, the
claim for Item 5 will not be allowed.
[9] In consideration for the
substantial amount of work required in this matter and the short turn-around
time, I allow the number of Units claimed under Item 10 for the preparation for
conferences, Item 11 for attendance at such conferences, Item 13 for the
preparation for hearing and Item 27 for the filing of the Notice of Appearance.
[10] I acknowledge that a certain
amount of work was performed in the preparation of the documentation in support
of the Bill of Costs in order to provide background information to the
assessment officer and as such four Units are allowed under Item 26 (assessment
of costs).
[11] The Bill of Costs is allowed for
a total amount of $2,600.00.
“Johanne Parent”
Toronto, Ontario
February 17, 2010
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