Date: 200070103
Docket: IMM-9759-04
Citation: 2007 FC 4
BETWEEN:
ERNST
ZUNDEL
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
ASSESSMENT OF
COSTS - REASONS
[1]
This
is an assessment of costs pursuant to an Order of the Federal Court dated
November 29, 2005 which allowed the Defendant’s motion striking out the
Plaintiff’s Amended Statement of Claim filed on November 1, 2005. In addition,
the same Order of the Federal Court allowed the costs of the motion to be
assessed on a Column IV basis of Tariff B of the Federal Courts Rules.
[2]
It
is worthy to note that the Plaintiff appealed the November 29, 2005 decision of
the Federal Court to the Federal Court of Appeal. The Federal Court of Appeal
dismissed with costs the Notice of Appeal on October 30, 2006. The respective
Defendant’s and Respondent’s Bills of Costs for both proceedings were served by
facsimile on the solicitors for Mr. Zundel on November 14, 2006.
[3]
I
wish to note that my written directions issued November 15, 2006 for the filing
of further material in support and in opposition to the Bill of Costs was only
issued with respect to the Federal Court of Appeal matter. However, upon
receipt of the Bill of Costs associated with the Federal Court matter, the
parties were contacted on December 6, 2006 with regards to their respective
letters of submissions. The parties indicated that their respective
documentation pertained to both the Federal Court and Federal Court of Appeal
proceedings. In addition, the parties indicated that they were comfortable and
satisfied that my timetable for the filing of all assessment materials would pertain
to both Bills of Costs. The parties also confirmed to this assessment officer
that no further materials in support or opposition to the Bills of Costs would
be forwarded to the Toronto Registry.
[4]
Mr.
Zundel’s solicitor forwarded a brief letter of submissions on the same day that
I issued my timetable for the filing of all documentation. This Plaintiff’s
letter of submissions raised objections to the maximum fees under Column IV and
III of Tariff B of the Federal Courts Rules that the Defendant was
alleged to have claimed in its Bill of Costs and indicated that the Defendant’s
claim for disbursements was excessive. For these reasons, the Plaintiff
requested that both the assessable fees and disbursements that the Defendant
had claimed in its Bill of Costs be reduced.
[5]
The
Defendant on November 16, 2006 forwarded a brief letter of submissions in
response to the Plaintiff’s correspondence. The Defendant noted in its letter
of submissions that the Reasons for Order of the Federal Court dated November
29, 2005 at paragraph [38] indicated that the “Defendant shall have its costs
to be assessed on a Column IV basis as this motion was somewhat more difficult
than most.” The Defendant also points out that the Affidavit of Tom Heinze,
sworn on November 10, 2006, details “the disbursements for photocopying and
receipts are attached thereto as exhibits.” The Defendant submits that the
“costs are not excessive as they are completely accounted for by the receipts.”
Assessment
[6]
I
have reviewed all of the materials associated with the Defendant’s Bill of
Costs and reviewed the entire Court file in IMM-9759-04.
[7]
In
its Bill of Costs, the Defendant has requested 9 units and 20 units respectfully
for item 5 (Preparation and filing of a contested motion, including materials
and responses thereto) and item 6 (Appearance on a motion, per hour). The
Defendant’s representations have supported these requests for these assessable
services in its letter of submissions dated November 16, 2006. The Defendant
submitted that “Given the extreme complexity and specialization of litigation
concerning national security certificates, and the Charter it is the
Respondent’s (Defendant’s) position that nothing but a maximum claim under
Column III and Column IV respectively, is acceptable given the significance of
the proceedings.”
[8]
Based
on the wording of the Order of the Federal Court dated November 29, 2006 as I
have outlined in paragraph [5] above, it is my opinion that the Defendant is
allowed to claim these assessable services under Column IV of Tariff B of the Federal
Courts Rules. In addition, Rules 405, 409, and 400(3)(c) of the Federal
Courts Rules state:
405. Assessment by assessment officer –
Costs shall be assessed by an assessment officer.
409. Factors in assessing costs - In
assessing costs, an assessment officer may consider the factors referred to in
subsection 400(3).
400(3). Factors in awarding costs - In
exercising its discretion under subsection (1), the Court may consider
…
(c)
the importance and complexity of the issues;
…
With respect
to the Federal Courts Rules that I have mentioned and considering the
Defendant’s complexity submissions as I have outlined in paragraph [7] above,
it is my opinion that the Defendant’s claim for item 5 and item 6 is reasonable
and has been justified for 9 units and 20 units respectively. For these
reasons, I allow a total of 29 units ($3, 480.00) for these assessable
services.
[9]
The
Defendant has requested $1,517.14 for photocopying disbursements. The Affidavit
of Tom Heinze, sworn on November 10, 2006, has copies of the respective
photocopy invoices attached as exhibits to the affidavit. These disbursements
appear reasonable and they have been established by affidavit. For these
reasons, I allow the Defendant’s disbursements in their entirety for $1,517.14.
[10]
The
Defendant’s Bill of Costs in IMM-9759-04 is assessed and allowed in the amount
of $4,997.14 which includes assessable services of $3,380.00, disbursements of
$1,517.14 with applicable GST. A certificate is issued in this Federal Court
proceeding for $4,997.14 payable by the Plaintiff to the Defendant.
“Paul Robinson”
Paul
G.C. Robinson
Assessment Officer
Toronto,
Ontario
January
3, 2007
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9759-04
STYLE OF CAUSE: ERNST ZUNDEL
Plaintiff
and
HER MAJESTY THE
QUEEN
Defendant
ASSESSMENT OF COSTS IN WRITING WITHOUT
PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL
G.C. ROBINSON, Assessment Officer
DATED: JANUARY
3, 2007
SOLICITORS OF RECORD:
Peter Lindsay FOR
THE PLAINTIFF
Barrister
Toronto, Ontario
John H. Sims, Q.C. FOR
THE DEFENDANT
Deputy Attorney General of Canada
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