Docket: T-2057-13
Citation:
2015 FC 1238
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
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BETWEEN:
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MÉLANIE ALIX
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR ASSESSMENT
JOHANNE PARENT, Assessment Officer
[1]
On November 6, 2014, the Court dismissed the
application for judicial review with costs. On September 1, 2015, the
respondent served and filed his bill of costs, and directions were issued on
September 10, 2015, informing the parties that the assessment would proceed on
the basis of written submissions and setting out the prescribed timeline for
the filing of submissions. In addition to the affidavit of Angela Mastrogiacomo,
which was solemnly affirmed on May 26, 2015, the respondent filed representations
in reply to the submissions made by the applicant in response to the bill of
costs.
[2]
Alleging that the respondent is unjustifiably
claiming the maximum number of units for all of the items claimed under Tariff
B of the Rules, counsel for the applicant points out the complexity of the
issues factor and the amount of work factor in subsection 400(3) of the Federal
Courts Rules (Rules). Also, referring to paragraph 11 of Stevens v AGC,
2007 FC 847, counsel for the applicant argues that this matter was
not frivolous, that the proceedings were not unduly lengthy, and raises “the common law principle . . . that costs cannot be made a
source of profit to a successful party, . . . that the approach to costs can be
viewed as being animated by the broad concern to ensure that the justice system
works fairly and efficiently”. Regarding the seven units claimed under item
2 of Tariff B, the applicant alleges that the parties’ arguments in their
memoranda of fact and law were very brief since only one issue was raised, that
is, an error in law. In her written submissions, the applicant contends that the
matter raised [translation] “no preliminary issue, no witnesses were heard, no out‑of‑court
examinations took place and no constitutional questions were raised”. In
light of the foregoing, the [translation]
“straightforward nature of the sole issue” and
the fact that the respondent did not file an affidavit,
the applicant requests that four units be allowed under item 2 of Tariff B. Regarding
the five units claimed under item 13 of Tariff B, counsel for the applicant
alleges that three units should be allowed considering the brevity of the
memorandum of fact and law and the fact that no witnesses were heard, no
examinations took place, no subpoenas were issued and no experts were necessary.
Because of the brevity of the hearing, the applicant alleges that the
allocation of two units under item 14 of Tariff B reflects the work done in
Court. Regarding item 26 (assessment of costs), counsel for the applicant
maintains that this matter is not complex enough to be granted the maximum
number of units as [translation] “the parties tried unsuccessfully to find some common ground”.
[3]
Regarding the disbursements claimed by the
respondent, counsel for the applicant maintains that they are reasonable except
for the fees claimed for the transcript. Arguing that those fees are unjustified,
it is submitted that rules 309 and 310 [translation]
“are unequivocal, the parties must file the necessary
transcripts in their records”. Requesting that this disbursement be denied,
the applicant contends that the allegations in the respondent’s affidavit are
without merit and that the affidavit with the necessary transcript was filed within
the deadline and with the consent of the respondent.
[4]
In reply, counsel for the respondent points out,
contrary to the applicant’s claims, that three issues were raised in this
matter; the first two points were addressed in seven pages of the applicant’s
memorandum and contained some seventy-nine references to the evidence and the
authorities. Regarding the absence of an affidavit in the respondent’s record, counsel
for the respondent adds that [translation] “the only relevant evidence is the evidence which was before
the decision-maker” and that as a result, there was no need for the
respondent or the applicant to submit an affidavit.
Regardless, counsel for the respondent alleges that he had to analyze the
evidence and the transcript of a hearing that was three days long, in addition
to analyzing the applicable case law and preparing the submissions. With
respect to the claim under item 14, it is argued that a fee of $280 should be allowed
to reflect the length of the hearing. Regarding the claim for the assessment of
costs, it is alleged that the units claimed are justified when there is consideration
of the preparation and filing of the bill of costs, the settlement discussions and
the written submissions. Regarding the cost of the transcript, it is alleged
that the cost is justified because the transcript was necessary and would have
been filed by the respondent if the applicant had not done so. With the aim of
minimizing costs, counsel for the respondent states that he inquired into the filing
of the transcript with counsel for the applicant. According to the evidence in
the affidavit in support of the bill of costs, counsel for the applicant
apparently [translation] “failed to respond in a timely manner to requests from the
Attorney General of Canada, who had to incur the cost of the transcript”.
Referring to paragraphs 10 to 15 of the Court’s decision, counsel for the respondent
notes that that evidence was necessary for the application for judicial review
and, therefore, his client’s rights had to be protected. Given the date on
which counsel for the applicant contacted counsel for the respondent to inform him
that he would take care of the transcript, it is submitted that work on the transcript
ordered by the respondent had already been started and the cost already
incurred. In reply to the applicant’s arguments on the obligation to file a transcript,
it is alleged that there was no obligation if the applicant did not consider it
necessary for her record. In this regard, counsel for the respondent states
that he considered the transcript necessary for his record and thus, the expense
was entirely justified. It is also alleged that, considering the delay in
counsel for the applicant’s response concerning the transcript, the cost of the
transcript claimed reflects only the work that was performed before the
stenographer was contacted by counsel for the respondent and asked to stop the
work. Finally, it is argued that the bill of costs [translation] “does not constitute a profit”
for the respondent and, given the fact that the applicant did not request any
particular order for costs, they are assessable.
[5]
On October 5, 2015, counsel for the applicant filed
additional submissions with respect to the number of issues in this matter, the
relevance of the affidavit including the transcript in the applicant’s record
and the allegation that counsel for the applicant had failed to act in respect
of the transcripts. Despite the fact that none of the provisions in the directions
issued on September 10, 2015, covered the filing of a sur-reply, the
applicant’s document was received, and the opportunity to respond to it was provided
to the opposing party.
[6]
The maximum number of units is claimed for the preparation
and filing of the respondent’s record (item 2 of the table to Tariff B). In response
to the argument by counsel for the applicant that the number of units should be
reduced because the respondent did not file an affidavit in his record, I note
that rule 307 and subsection 310(2) of the Rules cover the service and filing
of a respondent’s affidavit. I also note, as the Court proposed in the
following decisions, that it is not always necessary for the respondent to file
an affidavit: William v Canada, 1997 2 FC 646, Wang v Canada, 1999 FCJ
248 and Awwad v Canada, 1999 FCJ 103. That fact thus has no bearing on
the number of units allowed except concerning the amount of work. Also, the two
parties place a great deal of emphasis on the number of issues raised in this case.
In this regard, I reviewed the records filed by the parties and the issued
raised by each of them. In his memorandum of fact and law, the respondent
reduces to one single issue the three points raised by the applicant, which were
then reduced to two issues by the Court. Those issues and the parties’ arguments
in the memoranda of fact and law do not lead me to find that this was a matter
of great complexity. Further to my reading of the Court’s decision and my
review of the memoranda of fact and law of both parties and in light of
paragraphs 400(3)(c) and (g) of the Rules, nothing leads me to
conclude that this matter was very complex or that it could have required a very
significant amount of work; five units will thus be allowed.
[7]
The maximum number of units is again claimed for
the preparation for the hearing (item 13(a)) and for the attendance
in Court (item 14(a)). It is understood that no witnesses were heard, no
examinations took place and no subpoenas were issued, and in
consideration of the arguments in the previous paragraph, three units will be allowed
under item 13 and two units multiplied by the length of the hearing on
August 12, 2014, will be allowed under item 14.
[8]
Regarding the six units claimed under item 26 of
Tariff B (assessment of costs), I recognize that the respondent prepared,
served and filed the bill of costs, an affidavit and supporting documentation as
well as written submissions. Considering the work done for this straightforward
assessment, four units will be allowed under item 26.
[9]
With respect to disbursements, counsel for the
applicant challenges the stenographic costs in the amount of $122.45. Subsections
309(2) and 310(2) of the Rules state that the records of the applicant and the respondent
shall contain “the portions of any transcript of oral
evidence before a tribunal that are to be used by the[m] . . . at the
hearing” (emphasis added). My reading of those paragraphs leads me
to conclude that only the portions of a transcript deemed necessary by the
parties and that they intend to use should form part of the record. The parties
were therefore not required to file the transcript that was made during the
hearing before the independent chairperson. Also, as decided in Carlile v
Canada, 1997 FCJ No 885, at paragraph 5 and Dableh v Ontario Hydro,
1994 FCJ No 1810, at paragraph 15, assessing the
disbursements cannot be done in hindsight, but rather as the gauge of the effort
required at the time for prudent representation of the client. Given the deadline
for the service and filing of the records (subsections 309(1) and 310(1) of the
Rules) and the evidence in the affidavit of Angela Mastrogiaconi regarding
the delay in counsel for the applicant’s response concerning the transcript, I
am of the opinion that it was prudent and reasonable for
the respondent to have had the transcript prepared as he did so that his record
could be created within the prescribed timeframe in the Rules. The costs
incurred for the transcript will be allowed as requested because they reflect only
the work that was completed before the two counsel were in contact. The other
disbursements claimed by the respondent are not in dispute, are considered necessary,
and the amounts are reasonable. They will be allowed as requested.
[10]
The respondent’s bill of costs is assessed and allowed
in the amount of $2,273.86. A certificate of assessment will be issued for
that amount.
“Johanne Parent”
Toronto, Ontario
October 30, 2015
Certified true translation
Janine Anderson,
Translator
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