Date: 20071213
Docket: T-1701-04
Citation: 2007 FC 1319
BETWEEN:
David
BIRKETT
Applicant
and
CANADIAN
HUMAN RIGHTS COMMISSION
and
SUE GOODWIN
Respondents
ASSESSMENT OF
COSTS – REASONS
Charles
E. Stinson
Assessment Officer
[1]
The
role of the Respondent, the Canadian Human Rights Commission (the CHRC
Respondent) before the Canadian Human Rights Tribunal (the Tribunal) is to
represent the public interest, not to represent the complainant or respondent. This
application for judicial review of a decision of the Tribunal, finding that the
Applicant had sexually harassed the Respondent, Sue Goodwin, was dismissed
with costs. I issued a timetable for written disposition of the assessment of
the CHRC Respondent's bill of costs. The exchange of submissions resulted in
the withdrawal of counsel fee item 5 for preparation of a contested
motion. Other items not attracting any objections are allowed as presented.
I. The CHRC Respondent's Position
[2]
The
CHRC Respondent argued generally that all items in the bill of costs were
proper. In particular, fee item 15 addresses the factum prepared as part
of the responding Application Record. Fee item 24 for the time of counsel to
travel to the hearing venue in Toronto and the associated travel
disbursements of $693.65 are properly claimed given the statutory scheme
locating the headquarters of the CHRC Respondent in Ottawa, meaning
that its solicitor of record is also located there. The Court in Canada v. James
Lorimer & Co., [1984] 1 F.C. 1065 at 1076-77 (C.A.), held that
the Crown is entitled to obtain costs.
II. The Applicant's Position
[3]
The
Applicant argued that fee item 24 and the associated travel disbursements
should be disallowed because the Crown and her legal representatives should be
presumed to be present throughout the realm. That is, litigants who are liable
to pay costs to the Crown and who do not live in Ottawa should not
be penalized with travel costs. Fee item 25 (services after judgment not
otherwise specified) should be disallowed in the absence of details thereof.
The Applicant objected to fee item 15.
III. Assessment
[4]
I
disallow fee item 24 further to my conclusions in Marshall v. Canada, [2006]
F.C.J. No. 1282 at para. 6 (A.O.), that there must be a visible direction by
the Court to the assessment officer specifically authorizing fees for the time
of counsel in transit. Such a direction is not however necessary to assess the
associated travel disbursements. Paragraphs 2 and 8 of Bellemare v. Canada (A.G.)
(2004), 327 N.R. 179 (F.C.A.), indicate that the arrangements for the location
of the Crown's legal representative are permissible if reasonable as here. The
CHRC Respondent, in response to the Applicant's complaint about the absence of
invoices for the travel disbursements, produced in rebuttal the travel claim
for its counsel prepared within the Treasury Board of Canada guidelines. This
document was readily available all along and should have been produced as part
of the materials in chief: see Métis National Council of Women v. Canada
(A.G.), [2007] F.C.J. No. 1259 (A.O.). However, the amount on its face is
reasonable and I will not penalize the CHRC Respondent. I allow the $693.65.
[5]
Fee
item 15 falls under the subheading in the Tariff of "Trial or
Hearing" and generally refers to written argument produced in connection
with the hearing of the substantive issues of the litigation. It is not
intended as additional compensation for the work associated with fee item 2,
which falls under subheading "Originating Documents and Other
Pleadings." As well, the use in fee item 2 of the adjective
"all" in conjunction with "respondents' records and
materials" precludes additional compensation using other items such as fee
item 15. I routinely allow fee item 25, as I will here, unless I think that
responsible counsel would not have reviewed the judgment and explained its
implications to the client. Fee item 26 is allowed as presented at 3 units
($120.00 per unit).
[6]
The
CHRC Respondent's bill of costs, presented at $6,322.45, is assessed and
allowed at $3,676.85.
"Charles E. Stinson"
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