Date :
20110221
Docket: T-1029-92
Citation :
2011FC197
JOSEPHINE E. MARSHALL
Plaintiff
-and-
HER MAJESTY THE QUEEN, the PUBLIC SERVICE
ALLIANCE OF CANADA,
and the UNION OF PUBLIC SERVICE EMPLOYEES
Defendants
ASSESSMENT OF COSTS – REASONS
Willa
Doyle
Assessment
Officer
[1] November 1, 2005 in Halifax Nova Scotia,
the Honourable Mr. Justice Blais (as he then was) heard two interlocutory
motions brought by the defendants for summary judgment dismissing the above
noted action.
[2] January 19, 2006 The Honourable
Mr. Justice Blais (as he then was) issued his Reasons for Order and Order. The
Order read as follows:
“THIS COURT ORDERS THAT:
1.
The
interlocutory motion for summary judgement be granted;
2.
The
plaintiff’s amended statement of claim is struck out.
3.
The
plaintiff’s action is dismissed;
4.
The
defendants shall file and serve their written submission on costs no later that
15 days from the date of this order;
5.
The
plaintiff shall file and serve her written submissions on costs no later that
15 days after the filing of the defendants’ submission; and
6.
The
defendants are allowed 5 days after the filing of the plaintiff’s submission to
file a reply, if necessary.”
[3] September 8, 2006 Mr. Justice
Blais (as he then was), following receipt and subsequent analysis of both the
defendants’ and the plaintiffs’ submissions on costs issued his Reasons for
Order and Order. The Order addressed topics listed under the following
subtitles: relevant facts, analysis for costs, particular circumstances,
disability, delay, written offers, and conclusion. The Order issued read as
follows:
“THIS
COURT ORDERS:
The defendants are
awarded their costs in accordance with the regular column of the Tariff B
(Column III). ”
[4] December 17, 2010 the defendants’
filed their bill of costs and affidavit of disbursements in the registry of the
Federal Courts in Halifax, Nova Scotia. The cover letter
confirmed that no response from the plaintiff was received when an attempt to
negotiate a settlement of this claim was made. The letter also requested that
the assessment be by way of written submissions. I issued a timetable to the
parties regarding service and filing of reply and / or rebuttal materials, if
any. The timelines were lengthened in this instance with due consideration of
the Federal Courts Rules provision for the “Christmas recess”.
(the period beginning on December 21 in a year and ending on January 7 of the
following year). Those timelines are now expired.
[5] February 3, 2011 the
Halifax registry received a letter
from the defendant stating:
“…We respectfully
request that, if submissions are not served and filed by Ms. Marshall by the
close of business on Friday February 18, 2011, the Assessment Officer proceed
to consider the matters on the basis of the material files, and issue a
decision….”
I took this letter to indicate the
defendants’ awareness of the passage of their January 31, 2011 deadline
regarding their final opportunity to have served and filed on all parties any
rebuttal materials they may have wished to place before the Court for
consideration. There was never any request to extend the January deadlines
for submissions.
[6] Since the plaintiff has not
presented any challenge to the amounts claimed by the defendants,
either in the assessable services section or in the claimed disbursement
section of the bill of costs, I must continue based on the information in the
Court file. As is often stated, the assessment officer is not to advocate
for a party when they choose not to contradict nor challenge items claimed. It
is the role of the assessment officer to assess the costs claimed in accordance
with criteria established in Part 11 – Costs of the Federal Courts Rules.
[7] I reviewed material on the voluminous
file as well as each of the items individually listed in the defendants’ bill
of costs; both the assessable services and the disbursements claimed. In the
affidavit of disbursements, I noted that the defendants state that because this
case has been ongoing for some time (May 6, 1992) they would be claiming only
those disbursements from the year 2000 onward. I will begin with the assessable
services requested at $12,430.00.
[8] There is an item 5 entry listed
as Motion record; filed July 29, 1999 Re: Extension of Time No Personal Appearance.
This item will be reduced from the requested three units to zero. No units may
be awarded for this item since the Order is silent with regard to costs. The August
20, 1999 Order about that matter states:
“…My direction of June
28, 1999 is varied by the addition of sixty (60) days to each of the dates
stipulated for performance in the within time line.”
[9] Similarly, there is another item
5 entry listed as Motion Record; filed September 16, 2003 Re: appeal of
decision of Aronovitch dated August 20/03. The September 29, 2003 Order about
that matter states:
“…This motion is
denied. If the parties cannot agree as to the costs of the motion, these may
be separately spoken to.”
My review of the file does not reveal any
such specific submissions about that item therefore no amount may be claimed.
This claim for three units is reduced to zero.
[10] Additionally, in the assessable
services section, there is an item 6 entry listed as Appearance: April 15,
2004 3hrs. Upon review of the court file, the duration reported by the
registry officer in attendance was entered as two hours forty-seven minutes. Therefore,
that claim will be reduced from the requested nine units to an assessed and
allowed eight and one-quarter units. In summary, and for the above stated reasons,
the total assessable services claimed at $12,675.00 are reduced to $11,797.50.
[11] In regard to the claimed disbursements,
the item listed as Discovery Services at $3,469.17 is a statement of
account provided at tab F as an exhibit to the December 2, 2010 affidavit of
Annette Caines. Upon review of that exhibit, I see that the actual amounts invoiced
for the discoveries were $1,744.72 and $1,655.14 respectively. The statement
shows a total due and that total also includes an additional $69.31 that
appears to represent interest (Aug-02) – this interest amount is not allowed. All
other disbursements are allowed as requested and established by the sworn affidavit of Annette
Caines complete with attached exhibits. The total for disbursements requested
at $6,311.31
is now assessed and allowed at $6,242.00.
[12] The bill of costs presented at $18,986.31
is assessed and allowed in the amount of $18,039.50. A certificate is issued in
the Federal Court proceeding for $18,039.50.
“Willa
Doyle”
Willa Doyle
Assessment
Officer
Fredericton, New Brunswick
February
21, 2011
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1029-92
STYLE
OF CAUSE: JOSEPHINE E. MARSHALL –and-
HER MAJESTY THE QUEEN, the PUBLIC SERVICE
ALLIANCE OF CANADA, and the UNION OF PUBLIC SERVICE EMPLOYEES
ASSESSMENT
OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: Willa
Doyle, Assessment Officer
DATED: February
21, 2011
WRITTEN
REPRESENTATION BY:
FOR
THE PLAINTIFF
James
Gunvaldsen-Klaassen THE DEFENDANT
SOLICITORS
OF RECORD:
FOR
THE PLAINTIFF
Myles
J. Kirvan FOR THE DEFENDANT
Deputy Attorney General of Canada
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