Date: 20090122
Docket: T-1020-07
Citation: 2009 FC 66
BETWEEN:
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Applicant
and
KEYVAN
NOURHAGHIGHI
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment
Officer
[1]
The
Applicant brought a notice of application (the Application) for an order
further to the Federal Courts Act, section 40(1), to prevent the
Respondent from instituting any further proceedings in the Federal Court or in
the Federal Court of Appeal without first obtaining leave to do so. The
Respondent, a self-represented litigant, brought an interlocutory application
(heard on June 25, 2007) to strike the Application. The order dated November 6,
2007 (the O’Keefe J. Order) struck the application and directed that the
Respondent “shall have his costs of the application; such costs shall be
assessed by an assessment officer.”
[2]
The
Respondent filed a bill of costs (the 1st Bill of Costs) on December
3, 2007. By letter received January 25, 2008, in the Registry, counsel for the
Applicant asserted that the O’Keefe J. Order did not provide for compensation
for the Respondent’s time. In February 2008, the Respondent brought a motion to
condemn the Assessment Officer (me) for delay in assessing the 1st
Bill of Costs. On February 11, 2008, the Court dismissed this motion and did
not mention costs. On February 14, 2008, I set March 4, 2008 for the
hearing of the assessment of the Respondent’s costs. On February 22, 2008, the
Respondent presented additional materials to support his claim for costs and advanced
another bill of costs (the 2nd Bill of Costs). The order dated
February 26, 2008 dismissed the Respondent’s motion to set aside the February
11, 2008 order on the basis of fraud with lump sum costs of $300 to the
Applicant (the Lump Sum Order). The order dated March 4, 2008 adjourned the
Respondent’s motion for reconsideration, i.e. by replacing its provision for
costs of the Application with a provision for lump sum costs, of the O’Keefe J.
Order (the Amending Motion) and directed that there be no costs for the day.
[3]
At
the hearing before me on March 4, 2008, the Respondent indicated that the 1st
Bill of Costs and the 2nd Bill of Costs represented the sum of the
claims for assessed costs; that he understood further to many years of hearing
experience, in tribunals including courts, the protocol and convention for
hearing conduct and presentation in superior courts of record; and that he
understood the notion of indemnity underlying awards of litigation costs. The
Respondent requested an adjournment of the assessment of costs so that he could
pursue the Amending Motion. In response to my question as to what
prejudice might occur if an adjournment was refused, the Respondent said that
his reading of Turner v. Canada, [2001] F.C.J. No. 250 (A.O.), aff’d
[2001] F.C.J. No. 1506 (F.C.T.D.), aff’d [2003] F.C.J. No. 548 (F.C.A.) [Turner]
indicated an error in the O’Keefe J. Order, i.e. it did not direct costs for
his time estimated at $80,000 from June 2007 to the present, and that he
has no income and no work other than making legal challenges to the government.
He argued that only the Honourable Mr. Justice O’Keefe could hear the Amending Motion.
[4]
The
Applicant opposed an adjournment because the O’Keefe J. Order clearly
restricted the Respondent to Tariff B costs, i.e. his reasonable and
necessary disbursements, the Respondent cannot meet the test for an extension
of time to bring the Amending Motion as there was no reasonable explanation for
the delay, and there was no arguable case for reconsideration of the O’Keefe J.
Order.
[5]
I
noted for the Respondent that Turner, Bradley v. Canada (A.G.), [2006]
F.C.J. No. 1260 (A.O.) and Stevens v. Canada (A.G.), [2007] F.C.J. No.
1107, (2007) 315 F.T.R. 290 (A.O.) [Stevens] indicated my understanding
of the law in this Court for compensation for the time of self-represented
litigants. I indicated to the Respondent that an adjournment should not be
taken lightly, but that I did not want to interfere with his attempt to secure
a considerable sum of money. I adjourned the hearing sine die.
[6]
On
July 11, 2008, the Honourable Mr. Justice O’Keefe refused an extension of time
to bring the Amending Motion and dismissed it with no costs. I set October 31,
2008, for the assessment of the Respondent’s costs.
[7]
The
Respondent argued further to Rule 409 and several subsections of Rule 400(3)
that the conduct of the Applicant and the Federal Court had intentionally
complicated this litigation, that said conduct and the Application had
seriously and in a vexatious manner obstructed his access to the courts, that
these factors resulted in the considerable costs reflected in his two bills of
costs, and that his efforts were important in bringing to light the
transgressions of the Court. I interjected to tell him that I would not
entertain submissions asserting fraud on the part of counsel for the Applicant.
[8]
In
response to my queries, the Respondent said that he had not kept any receipts
for the photocopy claims of $120 (3000 pages/1st Bill of Costs) and
$80 (3000 pages/2nd Bill of Costs). He said that a government
office close to his residence did not charge him for the facsimiles he sent and
therefore the charges of $480 and $400 respectively for facsimiles at
institution in the 1st Bill of Costs and the 2nd Bill of
Costs are for his time. He said that the 1st Bill of Costs addressed
his costs from June 4, 2007 to the end of November 2007, that the 2nd
Bill of Costs addressed his costs from December 3, 2007 to February 22, 2008,
and that the $22,000 claimed in the 2nd Bill of Costs for his time
did not duplicate the $60,000 claimed for his time in the 1st Bill
of Costs. He estimated an additional 20 hours for work after the 2nd
Bill of Costs.
[9]
The
Applicant noted that there could only have been limited work associated with
the Application as the hearing on June 25, 2007 occurred shortly after
institution on June 4, 2007. The O’Keefe J. Order did not authorize the
Respondent to recover costs for his time and Mr. Justice O’Keefe subsequently
refused to reconsider that decision. Case law such as Stevens holds that
an assessment officer may only assess a self-represented litigant’s
disbursements, but not costs for his time. Decisions of assessment officers are
not binding on other assessment officers, but they should be read as
instructive on the law and conclusions to be made.
[10]
The
Applicant conceded that the Respondent could claim costs for the Application
and for his motion, but argued that the thousands of photocopies claimed
exceed what is relevant and reasonable, i.e. 51 pages at four copies each for
service and filing of his documents. In the absence of receipts, and although
more expensive than the rate the Respondent was able to get or the $0.25 per
page in the case law, the Applicant conceded the rate of $0.40 per page set by
Tariff A1(3) for registry photocopies. This works out to $81.60 which the
Respondent indicated could be raised to $90 to account for misprints and
transit charges for his travel to serve documents on the Crown.
The Applicant noted that Rule 408(2) provides that where “parties are
liable to pay costs to each other, an assessment officer may adjust those costs
by way of set-off” and requested that a $90 assessment in favour of the
Respondent be set off against the $300 lump sum award due to the Applicant
further to the Lump Sum Order.
Assessment
[11]
I
did not summarize and do not comment on the respective submissions of the
parties concerning costs payable personally by a solicitor as they are beyond
my jurisdiction and the scope here of the award of costs. Costs are an
indemnity and not a windfall. As far as I am aware, my findings in Stevens
still represent the state of the law in this Court concerning my jurisdiction
to address compensation for the time of self-represented litigants and I
therefore disallow the total of $82,880 (1st Bill of Costs + 2nd
Bill of Costs) for the Respondent’s time. Even if the Court had authorized me
to assess costs for his time, most of the 2nd Bill of Costs would
have been disallowed because it addressed work, i.e. motions, after and outside
the scope of the O’Keefe J. Order.
[12]
My
findings in Halford v. Seed Hawk Inc., [2006] F.C.J. No. 629 (A.O.), Biovail
Corp. v. Canada (Minister of National Health and Welfare) (2007), 61 C.P.R.
(4th) 33, [2007] F.C.J. No. 1018 (A.O.), aff’d [2008] F.C.J. No. 342
(F.C.) and Abbott Laboratories v. Canada (Minister of
Health)
(2008), 66 C.P.R. (4th) 301, [2008] F.C.J. No. 870 (A.O.) [Abbott]
(under appeal) set out my views on threshold of proof for categories of costs
and approach to their assessment. Paragraphs 68 to 71 inclusive of Abbott
above summarize the subjective elements and the notion of rough justice in
assessments of costs. In Fournier Pharma Inc. v. Canada (Minister of
Health),
[2008] F.C.J. No. 1151 (A.O.), I indicated in paragraph 30 that “if I can recognize
a reasonable charge given an invoice, I can likely recognize one without an
invoice, albeit with more difficulty.” The claim for 3000 photocopies in the 1st
Bill of Costs is unreasonable. The 1st Bill of Costs, presented at
$60,600 is assessed and allowed at $90 as I find that amount as conceded by the
Applicant quite reasonable in the circumstances. I disallow the 2nd
Bill of Costs presented at $22,480.
[13]
I
found in paragraph 160 of Abbott that I have the jurisdiction to set off
assessed costs against lump sum awards of costs. Here, that will work against
the interests of the Respondent because I will set off the $90 payable to him
against the $300 he owes to the Applicant further to the Lump Sum Order.
[14]
The
Crown did not request interest. The Respondent requested interest from November
6, 2007 (the date of the O’Keefe J. Order). Section 37(1) of the Federal
Courts Act provides that the law in force for judgment interest in the
province in which a cause of action originates applies to judgments of the Federal
Court. Section 129 of the Courts of Justice Act, R.S.O. 1990, c. C-43, provides
that post-judgment interest be calculated from the date of the order. Section
127 defines ‘post-judgment interest rate’ for section 129 as the bank rate of
the Bank of Canada “at the end of the first day of the last month of the
quarter preceding the quarter in which the date of the order falls, rounded to
the next higher whole number where the bank rate includes a fraction, plus 1
percent” and ‘quarter’ as the “three-month period ending with the 31st
day of March, 30th day of June, 30th day of September or
31st day of December.” November 6, 2007 falls in the fourth quarter
(October 31 – December 31) and therefore the first day of the last month of the
quarter (the third) preceding said quarter is September 1, 2007. The Bank of
Canada website lists 4.75% as the bank rate for 31/08/2007 to 03/09/2007.
Performing the calculation in section 127 results in 6%, the rate conceded by
the Applicant.
[15]
A
Certificate of Assessment will issue as follows:
I HEREBY CERTIFY that the costs
of the Respondent, presented at $83,080, are assessed and allowed at $90
together with interest of six percent (6%) from November 6, 2007.
SET-OFF
I HEREBY FURTHER CERTIFY that
$300, being the lump-sum award of costs to the Applicant further to the order
dated February 26, 2008, is set off against the assessed costs of the Respondent,
being $90 together with interest of six percent (6%) from November 6, 2007.
“Charles
E. Stinson”
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