Bratschitsch v. Canada (Attorney General), 2011 FC 1069

Date: 20110913

Docket: T-2112-10

Citation: 2011 FC 1069

Present:          JOHANNE PARENT, Assessment Officer

BETWEEN:

Dealt with in writing without the appearance of parties.

Certificate delivered at Toronto, Ontario, on September 13, 2011.

REASONS FOR ASSESSMENT OF COSTS BY:                                          JOHANNE PARENT

Date: 20110913

Docket: T-2112-10

Citation: 2011 FC 1069

BETWEEN:

          REASONS FOR ASSESSMENT OF COSTS

JOHANNE PARENT, Assessment Officer

[1]               The Court, upon a motion on behalf of the respondents, struck the Notice of Application pursuant to the Canadian Environment Protection Act (1999) on April 28, 2011, with the respondents being entitled to their costs, if demanded. Further to the receipt of the respondents’ Bill of Costs, directions were issued and sent to the parties on May 10, 2011 informing them that the assessment of the respondents’ Bill of Costs would proceed in writing and of the deadline to file representations.

[2]               Both parties filed written representations within the prescribed timeframe.

[3]               The assessable services claimed under Tariff B of the Federal Courts Rules for the preparation and filing of the respondents’ record and materials (respondents’ motion to strike the application) claimed under Item 5 as well as the claims for appearance at the motion (Item 6), for the assessment of costs (Item 26) and for such other services (Item 27) have not been contested and will be allowed as demanded.

[4]                Under Item 2 of Tariff B, the respondents claimed four units ($130 per unit) for the preparation of the Notice of Appearance. Although this service has not been contested, it cannot be allowed as claimed considering that Item 2 pertains to the “preparation and filing of all defences, replies, counterclaims or respondent’s records and materials”. Given that Tariff B does not cover for the preparation of the notice of appearance, Item 27 is the Tariff item that has generally been allowed by assessment officers for this service (see Bayer Healthcare AG v Sandoz Canada Inc. 2009 FC 691 par 27). Considering the amount of work required for this type of service, the document on file and the actual jurisprudence, I will allow one unit for the Notice of Appearance.

[5]               Seven units are claimed by the respondents for the preparation and filing of the responding record to applicant’s contested motion in writing to strike the respondents’ notice of motion (Item 5). The respondents argue that:

“… in an attempt to take improper advantage of counsel’s oversight, the applicant brought a motion in writing to strike the respondents’ notice of motion. The respondents submit that such behaviour is deserving of costs sanctions. This Court has clearly held that motions should be opposed on their merits and should not be made the subject of further procedural motions”.

The applicant opposes that claim.

[6]               In the Reasons disposing of the matter on April 28, 2011, the Court held that because of his “disposition of the motion of the respondents there is no need to consider the motion of the applicant”. Where a contested motion results in an Order that is silent as to costs, the assessment officer does not have the authority to award costs. The jurisprudence is consistent that for costs to be assessed on any motions, they must have been awarded by the Court. Considering the principle that there is no award of costs on motions where the order disposing of the motion is silent as to costs, I will disallow the claim for this service.

[7]               The respondents claimed five units under Item 13(a) for the preparation for the hearing of motions. Although this Item had not been contested by the applicant, it cannot be allowed. Undoubtedly, efforts were put by the respondents to prepare for the hearing of the motion but costs have already been allowed under Item 5 for said service. Item 13(a) of Tariff B is found under the sub-heading “Pre-Trial and Pre-Hearing Procedures” and covers for the services attached to the preparation for a trial or hearing and not for the preparation of a motion already covered under

Item 5.

[8]                I examined the disbursements claimed along with the supporting material and consider them necessary charges to the conduct of this matter. They are not contested. The amounts are reasonable and are therefore allowed.

[9]               The Bill of Costs is allowed for a total amount of $2,829.36.

"Johanne Parent"

Toronto, Ontario

September 13, 2011

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-2112-10

STYLE OF CAUSE:                          ANTHONY BRATSCHITSCH  v

THE ATTORNEY GENERAL OF CANADA AND THE CHIEF ENFORCEMENT OFFICER, ENVIRONMENTAL ENFORCEMENT, ENVIRONMENT CANADA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT

OF COSTS BY:                                  JOHANNE PARENT, Assessment Officer

DATED:                                             SEPTEMBER 13, 2011

REPRESENTATIONS:

SOLICITORS OF RECORD: