Date: 20090908
Docket: T-1293-05
Citation: 2009 FC 880
BETWEEN:
TRINITY CAPITAL CORPORATION
Applicant
and
CANADA REVENUE AGENCY
Respondent
ASSESSMENT OF
COSTS – REASONS
Johanne Parent
Assessment Officer
[1]
The
original Bill of Costs in this matter was filed June 3, 2009 further to the
filing of a notice of discontinuance by the applicant on October 7, 2008. A
timetable for the written disposition of the assessment of the respondent’s Bill
of Costs was issued on June 18, 2009 and sent to both parties. The respondent
filed a revised Bill of Costs on July 8, 2009 together with a supplementary
affidavit of disbursements and written submissions.
[2]
While counsel for the respondent filed the necessary material to
justify fees and disbursements within the prescribed timeframe, submissions in
reply on behalf of the applicant were not received by the Registry of the Court
in the allocated timeframe, nor was any request to extend the time to file
submissions received. In Dahl v. Canada, 2007
FC 192, [2007] F.C.J. No. 256, my colleague stated at paragraph 2:
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.
[3]
In
accordance with the above referenced comments, I am prepared to certify the
items in the respondent’s Bill of Costs which are not unlawful or outside the
authority of the Court Order and Tariff B of the Federal
Courts Rules.
[4]
The
costs of a discontinuance are governed by Rule 402 of the Federal Courts
Rules:
Unless otherwise ordered by the Court or
agreed by the parties, a party against whom an action, application or appeal
has been discontinued or against whom a motion has been abandoned is entitled
to costs forthwith, which may be assessed and the payment of which may be
enforced as if judgment for the amount of the costs had been given in favour of
that party.
[5]
The
applicant discontinued its application for judicial review in this file and
file T-1291-05 further to the decision of the Supreme Court of Canada in Redemeer
Foundation v. Canada (National Revenue) 2008 SCC 46. In the absence of a
specific Court decision ordering otherwise or an agreement by the parties, Rule
402 allows at this point for the respondent to have its costs assessed.
[6]
The
fees claimed for discovery (Item 8), Item 9 (examination) and Item 26
(assessment of costs) are allowed as claimed.
[7]
With
regard to the claims made for counsel fee (Items 5 and 6) for the preparation
and attendance on a motion for an order dismissing the application filed on
April 11, 2006, the preparation and attendance in Court to respond to a motion
to join for the hearing files T-1293-05 and T-365-06 filed on May 9, 2006 and
for the preparation and attendance in Court to respond to a motion for leave to
amend the Amended Notice of Application filed on July 6, 2006, I note that the
Court’s orders of August 21, 2006 and January 3, 2007 that deal with these
three motions are silent as to costs. 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 claims for Items 5 and
6 will not be allowed.
[8]
Identical
Bills of Costs are found in Court files T-1291-05 and T-1293-05. In the
affidavit of disbursements filed in support, the respondent mentions that the
matters are co-related. More specifically and as clearly shown in the Bills of
Costs, the disbursements incurred in respect of these files were divided
equally. The disbursements claimed seem reasonable save for the expenses
made in relation to the motions for which the Court did not allow costs. I
examined each expense claimed in that light along with the supporting material
and allow $333.50 for all the disbursements made.
[9]
The
Bill of Costs is allowed for a total amount of $1,413.50
“Johanne Parent”
Toronto, Ontario
September 8, 2009
Email this Content