Date: 20081204
Docket: T-374-06
Citation: 2008 FC 1348
BETWEEN:
MOHAMMAD ASLAM CHAUDHRY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS – REASONS
Johanne Parent
Assessment Officer
[1]
On
April 13, 2007, the Court dismissed with costs the application for judicial
review. A timetable for written disposition of the assessment of the
respondent’s bills of costs was issued on September 4, 2008. No further written
submissions or affidavit were received from the respondent while the applicant
filed representations within the prescribed timeframe.
[2]
As
indicated above, on April 13, 2007, Madam Justice Simpson dismissed the main
application. The applicant appealed that decision to the Federal Court of
Appeal which dismissed the appeal with costs. On August 1, 2008, the applicant
appealed the decision of the Federal Court of Appeal to the Supreme Court of
Canada which disposed of the matter on November 13, 2008.
[3]
Although
now moot, I wish to respond to the applicant’s submissions proposing that the
appeal to the Supreme Court of Canada should have stayed this assessment. As
stated in Latham v. Canada 2007 FCA 179:
“The
existence of outstanding appeals does not prevent the Respondents from
proceeding with these assessments of costs: see Culhane v.
ATP Aero Training Products Inc., [2004] F.C.J. No. 1810
(A.O.) at para. [6]. In Clarke v. Canada (Attorney General), [2005] F.C.J. No. 814
(A.O.) ….”
Consequently and despite the applicant’s position,
I would not have postponed this assessment pending the disposition of the
appeal to the Supreme Court of Canada.
[4]
The
applicant in his submissions requests that the Assessment Officer considers the
financial situation of both parties. As stated in Solosky v. Canada [1977] 1 F.C. 663
and many times confirmed:
Furthermore, in deciding whether costs should or should not
be awarded against an unsuccessful plaintiff, neither the ability to pay nor
the difficulty of collection should be a deciding factor but, on the contrary,
the awarding or refusal of costs should be based on the merits of the case.
Unless special circumstances exist to justify an order to the contrary, costs
should normally follow the event.
In accordance with the above mentioned
reference, the applicant’s argument concerning his financial situation is not a
consideration in the assessment of costs. With reference to the applicant’s
argument to reduce to zero dollars the respondent’s costs in view of the impact
on the justice system the granting of costs to the Attorney General of Canada
would have, Rule 400(2) of the Federal Courts Rules is clear: “Costs may
be awarded to or against the Crown”. Furthermore, pursuant to Rule
400(1), the award of costs is within the full discretionary power of the Court.
The Court, in dismissing the application with costs, made an unambiguous
decision and I have no authority to interfere with the Court on establishing
the allocation of costs.
[5]
The
assessable services claimed by the respondent for the preparation of his Record
(Item 2), the preparation for hearing (Item 13), the counsel fee at hearing
(Item 14) and for the preparation of written submissions requested by the Court
(Item 15) are all allowed as claimed.
[6]
The
respondent claims five units under Item 5 for preparing and filing the
responding material to a contested motion for interim relief. The Court’s order
of October 30, 2005 is silent as to costs. In Janssen-Ortho Inc. and Daiichi
Pharmaceutical Co., Ltd v. Novopharm Limited, 2006 FC 1333, the Court
determined that, “any pre-trial order that is silent as to costs means that no
costs have been awarded to any party”. Consequently, item 5 will not be allowed.
[7]
Item
24 will not be allowed as costs relating to travel by counsel to attend
hearings is at the discretion of the Court and I cannot find any indication in
the Court’s record of any directions or order from the Court allowing such
costs.
[8]
All
the disbursements
claimed are charges
deemed necessary to the conduct of this matter. The amounts claimed are not
contested, considered reasonable and are, therefore, allowed.
[9]
The
respondent’s bill of costs is allowed for a total amount of $ 4,260.00.
“Johanne Parent”
Toronto, Ontario
December 4, 2008
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