Date: 20090306
Docket: T-1156-05
Citation: 2009 FC 245
BETWEEN:
DONALD VOGAN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Order and Order dated February 6, 2006, the Court dismissed
the Applicant’s Application for Judicial Review, with costs to be paid by the Applicant
to the Respondent, such costs to be assessed at the lower end of Column III of
Tariff B.
[2]
On
November 25, 2008 the Respondent filed its Bill of Costs together with a letter
requesting an assessment of costs.
[3]
On
December 29, 2008, Christine Ball, Assessment Officer issued the following oral
direction (confirmed in writing):
The
Assessment Officer, Christine Ball, has noted the Respondent’s bill of costs
received on November 25, 2008 and has further noted that this assessment
appears appropriate for disposition by way of written submissions.
Therefore
the Senior Assessment Officer has directed that:
a) the Respondent may serve and file all material (if not already done),
including bill of costs, supporting affidavit and written submissions, together
with a copy of this direction by January 19, 2009;
b) the Applicant may serve and file any reply materials by
February
9, 2009;
c) the Respondent may serve and file any rebuttal material by February 23,
2009.”
[4]
The
time limits set by the direction have now passed and at this time the
Respondent has filed its Bill of Costs and the Applicant has filed submissions
in reply. The Respondent did not file submissions. The Applicant’s submissions
are of no assistance as they address issues that were before the Court rather
than issues relating to the assessment.
[5]
In
Reginald R. Dahl v. Her Majesty The Queen, [2007] F.C.J. No.192 at
paragraph 2, the assessment officer stated:
Effectively, the absence of any relevant
representations by the Plaintiff, which could assist me in identifying issues
and making a decision, leaves the bill of costs unopposed. My view, often
expressed in comparable circumstances, is that the Federal Courts Rules do
not contemplate a litigant benefiting by an assessment officer stepping away
from a position of neutrality 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.
[6]
Having
reviewed the file of the proceedings and the Bill of Costs and in view of the
Courts direction concerning Column III of the Tariff, I am satisfied that the
amounts claimed for assessable services should be allowed as presented.
[7]
On
the question of disbursements, Tariff B 1(4) provides:
No disbursement, other than fees paid to
the Registry, shall be assessed or allowed under this Tariff unless it is
reasonable and it is established by affidavit or by the solicitor appearing on
the assessment that the disbursement was made or is payable by the party. [Emphasis
added]
[8]
The
direction of December
29, 2008
invited the Respondent to serve and file a bill of costs, affidavit and written
submissions. No affidavits or submissions have been filed. Although I must
remain neutral, I have reviewed the file of the proceedings to determine
whether or not there is any evidence to support the disbursements claimed. I
was unable to find any evidence to support the following disbursements: process
server, on line enquiry, office supplies and couriers.
[9]
The
Respondent has claimed $211.25 for the cost of photocopies. While it is clear
from my review of the file that the Respondent did incur photocopying expenses,
I will apply the decision of the assessment officer in Métis National
Council of Women v. The Attorney General of Canada, [2007] FC
961 at paragraph 21:
The less that evidence is available, the
more that the assessing party is bound up in the assessment officer’s
discretion, the exercise of which should be conservative, with a view to the
sense of austerity which should pervade costs, to preclude prejudice to the
payer of costs. However, real expenditures are needed to advance litigation: a
result of zero dollars at assessment would be absurd.
[10]
The
claim for photocopying expenses will be allowed at $180.00.
[11]
The
Bill of Costs presented at $2,333.08 is allowed in the amount of $2,236.80. A
certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
March 6, 2009
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