Donovan v. Canada, 2010 FC 666

 

Date: 20100618

Docket: T-1337-07

Citation: 2010 FC 666

BETWEEN:

RICHARD JOSEPH DONOVAN

Applicant

and

 

HER MAJESTY THE QUEEN

Respondent

 

ASSESSMENT OF COSTS – REASONS

Charles E. Stinson

Assessment Officer

 

 

[1]               The Court dismissed with costs this application for judicial review of a decision of the Canadian Human Rights Commission to not investigate a complaint of alleged discrimination further to disadvantageous tax treatment and child support obligations.

 

[2]                 The Respondent served on the Applicant a bill of costs claiming the minimum counsel fees provided in the Tariff plus disbursements and requested an additional $360 for having to present the bill of costs for assessment. The Applicant’s reply submissions, in attacking the judgment underlying the award of costs, essentially misconceived the role of an assessment officer: see paragraph 3 of Marshall v. Canada, [2006] F.C.J. No. 1282 (A.O.) [Marshall]. I do not have the jurisdiction to vacate or vary a judgment as I am not the “Court” as that  term is used in the Federal Courts Rules: see Marshall above and Sander Holdings Ltd. v. Canada (Minister of Agriculture), [2009] F.C.J. No. 720 (A.O.).

 

[3]               Effectively, these circumstances are as if the Applicant had advanced no materials given the absence of any relevant representations which could have assisted me in identifying issues and making a decision. 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. I examined each item claimed in the bill of costs and the supporting materials within those materials.

 

[4]               My findings in Halford v. Seed Hawk Inc. (2009), 69 C.P.R. (4^th ) 1, [2006]  F.C.J. No. 629 (A.O.), Biovail Corp. v. Canada (Minister of National Health and Welfare) (2007), 61 C.P.R. (4^th) 33, [2007] F.C.J. No. 1018 (A.O), aff’d (2008), 64 C.P.R. (4^th) 475, [2008] F.C.J. No. 342 (F.C.) and Abbott Laboratories v. Canada (Minister of Health) (2008), 66 C.P.R. (4^th) 301, [2008] F.C.J. No. 870 (A.O.) [Abbott] set out my views on the threshold of proof for categories of costs and approach to this assessment. Paragraphs 62 to 72 inclusive of Abbott above summarize the subjective elements and the notion of rough justice in assessments of costs. In paragraphs 38 to 40 of Aventis Pharma Inc. v. Apotex Inc., [2009] F.C.J. No. 56 (A.O.), I reinforced my view that an assessment of costs should reflect the reality of the demands of litigation. I endorse the practical approach in paragraph 69 of Merck & Co. v. Canada (Minister of Health), [2007] F.C.J. No. 428 (A.O.) aff’d on its point and others, but varied on others [2007] F.C.J. No. 1337 (F.C.). Paragraph 14 of Merck & Co. v. Apotex Inc. (2009), 73 C.P.R. (4^th) 423, [2008] F.C.J. No. 1656 (F.C.A.) held that “in view of the limited material available to assessment officers, determining what expenses are “reasonable” is often likely to do no more than rough justice between the parties and inevitably involves the exercise of a substantial degree of discretion on the part of assessment officers.” This practice of rough justice does not however require an assessment officer to approve any and all claimed items of costs without question. Disallowances or reductions often occur. I have generally held that a paucity of evidence may result in conservative allowances.

 

[5]               The total amount claimed in the bill of costs is generally arguable as reasonable within the limits of the award of costs and is allowed as presented at $1, 037.50 including an amount of $360 under counsel fee item 26 for the assessment of costs.

 

“Charles E. Stinson”

Vancouver, BC

June 18, 2010

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              T-1337-07

 

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

 

 

REASONS FOR ASSESSMENT OF COSTS:                    CHARLES E. STINSON

 

DATED:                                                                                 June 18, 2010

 

 

WRITTEN REPRESENTATIONS:

 

RICHARD DONOVAN	FOR THE APPLICANT (self-represented)
GERARD L. CHERTIER	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

n/a	FOR THE APPLICANT (self-represented)
Myles J. Kirvan Deputy Attorney General of Canada Winnipeg, MAN	FOR THE RESPONDENT