Date: 20090219
Docket: T-520-07
Citation: 2009 FC 177
BETWEEN:
DAWIT
TUQUABO
Applicant
and
THE ATTORNEY GENERAL OF CANADA
CANADA REVENUE AGENCY
Respondents
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of judgment dated April 30, 2008, the Court dismissed the Applicant’s
Application for Judicial Review, with costs.
[2]
On
July
11, 2008
the Respondents filed their Bill of Costs together with a letter requesting an
assessment of their Bill of Costs.
[3]
On
September 15, 2008, Christine Ball, Assessment Officer issued the following
oral direction (confirmed in writing):
The
Respondent may serve and file all materials (if not already done) including the
Bill of Costs, supporting affidavit and written submissions, by October 6,
2008; the Applicant may serve and file any reply materials by October 27, 2008;
the Respondent may serve and file rebuttal materials by November 17, 2008.
[4]
The
time limits set by the direction have now passed and at this time the Applicant
has failed to file any materials in opposition to the Bill of Costs. Pursuant
to the direction the Respondents have filed their Bill of Costs, an affidavit
of Karyn Simpson and the Respondents submissions regarding assessment of costs.
[5]
In
Reginald R. Dahl v. HMQ [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]
Following
the reasons cited above, I will allow the assessable services and disbursements
as submitted, with the exception of the amount claimed under Item 5 for
assessable services, preparation and filing of a contested motion.
[7]
The
claim under Item 5 relates to a motion filed in file A-589-06, a proceeding in
the Federal Court of Appeal. The motion, filed by the Respondents, was for an Order
that it is the Federal Court, not the Federal Court of Appeal that has
jurisdiction to hear the matter. Since the Bill of Costs under assessment here
relates to File T-520-07 only, I do not have jurisdiction to assess any costs
related to the appeal file.
[8]
However,
if I am incorrect in my finding, upon reviewing the order in file A-589-06, the
Court did not make an award of costs. In Balisky v. Canada [2004] F.C.J.
No.536 at paragraph 6the assessment officer states:
Rule 400(1), which vests full
discretionary power in the Court over awards of costs, means that orders and
judgments must contain visible directions that costs have been awarded.
Given the Federal Courts Act ss.3 and 5(1) defining the Court and Rule 2
of the Federal Courts Rules, 1998 defining assessment officer, the
absence of that exercise of prior discretion by the Court leaves me without
jurisdiction under Rule 405 to assess costs.
[9]
In
keeping with the reasons cited above, the absence of an award of costs by the
Court of Appeal leaves me without jurisdiction to assess the costs of the
motion. For the above reasons, the costs submitted under Item 5 cannot be
allowed.
[10]
For
the above reasons, the Bill of Costs presented at $4,120.00 is allowed for a
total amount of $3,280.00. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
February 19,
2009
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