Kahentinetha v. Canada, 2009 FC 667

Date: 20090625

Docket: T-288-09

Citation: 2009 FC 667

BETWEEN:

KAHENTINETHA,

A PERSON OF THE KANION’KE: HAKA/

MOHAWK NATION

Plaintiff

and

THE QUEEN

Defendant

ASSESSMENT OF COSTS - REASONS

Bruce Preston

Assessment Officer

[1]               By way of Order dated April 7, 2009, the Court granted the Defendant’s motion to strike the Statement of Claim, with costs awarded in favour of the Defendant.

[2]               On April 30, 2009 the Defendant filed its Bill of Costs. Upon reviewing the file it was determined that this was a matter which could proceed by written submission. The time limits for the filing of submissions have now passed. As no further submissions have been filed, I will proceed with the assessment.

[3]               In Reginald R. Dahl v. Her Majesty the Queen, 2007 FC 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.

[4]               Following these reasons, I have reviewed the file; particularly the materials filed in support of the motion, and find the amounts claimed under Item 4, Item 25 and Item 26 to be reasonable and necessary. I will allow these as claimed. I will also allow the disbursements as submitted.

[5]               Having regard to Item 21a), I cannot allow this amount as it falls under Tariff B, Part F, Appeals to the Federal Court of Appeal. Further, Item 21 is intended to allow for the same services in Federal Court of Appeal as Item 4 allows in the Federal Court. Therefore, in addition to the fact that this proceeding is not in the Federal Court of Appeal, having already allowed the amount claimed under Item 4, I am not able to allow the same services a second time for the same motion.

[6]               Concerning Item 27, I am unable to allow this amount as the Defendant provided no evidence as to which services were rendered to justify this amount.

[7]               For the above reasons, the Bill of Costs presented at $1,577.51 is assessed and allowed at $1,388.51. A certificate of assessment will be issued.

     “Bruce Preston”

Toronto, Ontario

June 25, 2009

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-288-09

STYLE OF CAUSE:                          KAHENTINETHA v. THE QUEEN

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

PLACE OF ASSESSMENT:                                                 TORONTO, ONTARIO

REASONS FOR ASSESSMENT OF COSTS:                    BRUCE PRESTON

DATED:                                                                                 JUNE 25, 2009

WRITTEN REPRESENTATIONS:

SOLICITORS OF RECORD: