Date: 20120525
Docket: A-450-10
Citation: 2012 FCA 153
PRESENT:
Bruce Preston, Assessment Officer
BETWEEN:
RACHEL EXETER
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ASSESSMENT
OF COSTS
BRUCE PRESTON, Assessment Officer
[1]
By
way of Judgment dated September 16, 2011, the Court dismissed the Appeal, with
costs.
[2]
On
November 30, 2011, the Respondent filed its Bill of Costs claiming fees and
disbursements of $3,363.93. Further to the directions of December 16, 2011 and
February 17, 2012, the parties have filed materials concerning the assessment
of costs. On January 16, 2012, the Respondent filed the Affidavit of Johanne
Gagnon sworn January 9, 2012. Attached to the affidavit was a Draft Bill of
Costs claiming fees and disbursements of $3,595.93. The Appellant having had an
opportunity to make submissions concerning the Draft Bill of Costs filed
January 16, 2012, I will utilize it to conduct the assessment of costs.
[3]
In
the Appellant’s Response to the Respondents Bill of Costs (Appellant’s
Response), the Appellant requests an adjournment of the assessment of costs
pending her appeal to the Supreme Court of Canada. In her submissions, the
Appellant contends that the delay in filing her appeal was caused by her ill
health, which has been ongoing since September 2011. The Appellant submits that
her treatments will be finished and her appeal to the Supreme Court of Canada
should be filed by mid April, 2012.
[4]
In
reply to the Appellant’s request for an adjournment, the Respondent contends
that the Appellant had sixty days to file an application for leave to appeal to
the Supreme Court of Canada, that six months have lapsed since the decision of
the Federal Court of Appeal and that the Appellant has still not filed an
application for leave. The Respondent further argues that the appellant’s ill
health cannot be taken as justification for the delay as the Appellant has
pursued another appeal in docket A-84-11 and filed two additional motions in
the Federal Court of Appeal (12-A-12 and 12-A-13).
[5]
Having
reviewed the recorded entries for docket A-84-11, it is apparent that the
Appellant appeared at the hearing of her appeal on March 21, 2012. This brings
into question why the Appellant’s health prevented her from being able to file
an application for leave to appeal to the Supreme Court of Canada when she was
able to proceed with her appeal in the Federal Court of Appeal. Further, the
Appellant has presented no evidence from a physician indicating that she was
being treated for an ailment between September 2011 and April 2012. Also, in Latham
v Canada, 2007 FCA 179 (paragraph 8), it was held that the existence of outstanding appeals does not prevent a
party from proceeding with an assessment of costs. In the present assessment
there is no evidence that the Appellant has filed an application for leave to
appeal to the Supreme Court of Canada, even though the Appellant has submitted
that leave should be filed by April of this year. Further, in keeping with Latham,
even if the Appellant had filed an application for leave with the Supreme Court,
this assessment could proceed. Therefore, given that I have been presented with
no evidence that the Appellant’s health justifies the delay, and in keeping
with Latham, the Appellant’s request for an adjournment of the
assessment is denied.
[6]
In
her response, the Appellant also submits that the evidence of the Respondent is
perjured. In reply, the Respondent submits that the Appellant’s contention that
the Respondent has relied on perjured evidence is inaccurate, vexatious and
frivolous.
[7]
I
find that the Appellant’s accusation is unfounded. I have been provided with no
evidence to support her assertion that the Respondent’s evidence is perjured.
Further, having reviewed the evidence of the Respondent, I find the evidence to
be consistent with the conduct of the proceeding.
[8]
The
Appellant also argues that the claims should have been submitted under column I
and that the claims are excessive. In reply, the Respondent submits that Rule
407 of the Federal Courts Rules stipulates that costs be assessed in accordance
with column III of the table to Tariff B.
[9]
As
indicated by the Respondent, Rule 407 states that unless the Court orders
otherwise, costs shall be assessed in accordance with column III of the table
to Tariff B. In the present case the Court did not order or direct that a
column other than column III be utilized in the assessment of costs. Given
this, I am bound by the provisions of Rule 407. Therefore the Respondent’s
costs will be assessed in accordance with column III of the table to Tariff B.
[10]
Concerning
the specific claims for assessable fees and disbursements, the Appellant argues
that the claim for process servers should not be allowed as the she picked up
packages from the post office. The Appellant also submits that the claim for
photocopying should be reduced as the Appellant did not receive the documents
claimed under invoice 17848 and invoice 200911920 is dated after the hearing
had concluded and the decision had been rendered. Also, the Appellant argues
that the claim for Quicklaw was unnecessary as the case was not complex and
litigation is the Respondent’s specialization. Further, the Appellant contends
that Item 5 should not be allowed as she did not receive the Respondent’s
material concerning the constitutional question until after the hearing. The
Appellant also argues that the motion to strike the constitutional question
lasted only 20 minutes. It is further argued that Item 19 should not be allowed
as the Respondent’s Memorandum of Fact and Law was substantially the same as
that used in the lower Court. After concluding that the costs allowed should be
nil the Appellant submits:
In all the circumstances, I
conclude that the amount claimed for costs is unfair and unreasonable.
Referring to the Rules of
Civil Procedure, in fixing the costs the Assessment Officer is required to
consider the factors set out in rule 57.01. The costs award must be fair and
reasonable and must take into account the reasonable expectations of the
parties: Boucher v Public Accountants Council for the Province of Ontario (2003), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.). At the end of the
exercise, taking those factors into account, you are required to stand back and
make an award that is just in the circumstances. The same context applies to
the Federal Courts Rules, rule 400.
I regard the following factors as
particularly important in this case:
-the motion was not complex, given the issues of
jurisdiction;
- the time spent and the rates claimed are
unreasonable in light of the consequence of the motion;
- amounts claimed and the amounts recovered are
factors to be considered; and
- Respondent exaggerates the amount of work.
Moreover, I live below the
poverty line not by design but caused by Statistics Canada. I was bullied,
harassed and mobbed everyday for four years ….until I was fired.
-I do not have the ability to pay any amount.
-I went to the Courts to right a wrong committed
against me but the Courts misconstrued the evidence presented. I do not
consider the decision of the FCA final for there is the SCC.
[11]
In
reply to the Appellant’s submissions, the Respondent argues that the process
server was used to serve the Appellant with relevant materials and that
invoices have been submitted. Concerning the claims for Items 19 and 5, the
Respondent argues that the Memorandum of Fact and Law and the motion to strike
the constitutional question were prepared and served on the Appellant. Having
regard to photocopying, the Respondent contends that although invoice #
200911920 was dated after the hearing, the service rendered was provided on
September 13, 2011, prior to the hearing. Finally the Respondent contends that
the Quicklaw research was needed to respond to the appeal and that the appeal,
including the motion to strike the constitutional question lasted 1 hour and 20
minutes.
Assessment
[12]
Concerning
the Appellant’s contention that she is not able to pay any amount to the
Respondent, it has been decided that ability to pay is not a factor which may
be considered in an assessment of costs (see: Solosky v Canada, [1977] 1 F.C. 663; Moodie v Canada (Minister of National
Defence, 2009 FC 608; Seesahai v Via Rail Canada Inc., 2011 FCA 248;
Murray v Canada (Attorney General), 2009 FCA 52). Therefore, in keeping
with the above decisions, this factor will not be considered in assessing the
costs of the Respondent.
[13]
Having
regard to the standard of proof to be used in an assessment of costs, the
Appellant is correct in contending that an assessment of costs must
be fair and reasonable. At
paragraph 3 of the decision in Merck and Co. v Apotex Inc., 2006
FC 631, the Court held:
In general
a successful party is entitled to recover costs to be assessed on a Column III
basis together with disbursements that are reasonable and necessary for the
conduct of the proceeding. The Court may give specific directions as to
specific matters and general directions to the taxing officer as to the
criteria to be applied in assessing costs and disbursements. I propose to
provide such directions in these Reasons. (Emphasis added)
Having acknowledged
the Appellant’s submissions, and in keeping with this decision, I will only
allow such fees to which the Respondent is entitled and which comply with the
range of units under Column III to the table in Tariff B of the Federal
Courts Rules. Further, I will only allow such disbursements which I find to
be reasonable and necessary.
[14]
Concerning
the Appellant’s contention that Item 5 should not be allowed as she did not
receive the motion to strike the constitutional question until after the
hearing, I have reviewed paragraph 20 of the Reasons for Judgment of the Court
and the court file and it is clear that the Appellant was served with the
Respondent’s Motion and filed a Motion Record in response to the motion to
strike. However, notwithstanding this, I have reviewed the Order granting the
Respondent’s motion to strike and, it is noted, that the Court did not award
the Respondent costs for the motion. It has been held
that absent an exercise of discretion by the Court, an assessment officer, who
is not a member of the Court, has no jurisdiction to allow costs of a motion
(see: Canada v Uzoni 2006 FCA 344). Therefore,
the Respondent’s claim under Item 5 is disallowed. In keeping with this, the
Respondent’s disbursements for photocopying ($74.85) and service ($77.97) of
the Respondent’s motion record by process server are not allowed.
[15]
Concerning
Item 19, as the preparation of a Memorandum of Fact and Law requires work, I am
not inclined to disallow the Respondent’s claim. However, I find that the Respondent’s
Memorandum related to the appeal of an order dismissing a motion for an
extension of time. Further, having reviewed the Memorandum, the issues
addressed were not complex and the Memorandum was just over 11 pages long.
Under these circumstances, I find the Respondent’s claim of 7 units excessive.
Therefore, recognizing that an award of zero units, as suggested by the
Appellant, would be unjust, I allow Item 19 at the minimum of 4 units.
[16]
Concerning
the Appellant’s contention that the duration of the hearing was no more than 20
minutes, having reviewed the Abstract of Hearing in the Court Record Management
System, I have confirmed that the hearing of the appeal and motion had duration
of 1 hour and 20 minutes. However, as the Court did not award the Respondent
costs of the motion to strike, the time required to argue that motion must be
removed from the Respondent’s claim under Item 22. Given that the Respondent
has not provided evidence concerning the duration of the motion, I will accept
the Appellant’s submission that the motion lasted 20 minutes. Therefore, Item
22 is allowed at 3 units per hour for duration of 1 hour.
[17]
As
the Appellant submitted no objection to the other assessable services claimed,
they are allowed as presented in the Respondent’s Bill of Costs.
[18]
Concerning
the disbursement claimed for Quicklaw, although I have no hesitation to allow
legal research, I find a claim of $200.00 for a proceeding of this type
excessive. In the circumstances of an appeal from a motion for an extension of
time, and not having been provided with adequate evidence to justify the amount
claimed, and considering that the Respondent’s Book of Authorities contained
only ten decisions, I allow Quicklaw in the amount of $75.00 in recognition
that some on-line legal research would have been necessary.
[19]
The
final two disbursements claimed are photocopying and service of the
Respondent’s Record. Although there is no requirement for a Record on an appeal
from a decision in the Federal Court, the dates for service and filing of the
Record appear to correspond with the service and filing of the Respondent’s
Book of Authorities. Accepting that the disbursements relate to the
Respondent’s Book of Authorities and noting that the service and filing of a
Book of Authorities is a necessary step in the appeal process, I find the
disbursements incurred to be reasonable, necessary and justified by the
Affidavit of Johanne Gagnon. Therefore, I allow photocopying in the amount of
$88.23 and process server in the amount of $138.88.
[20]
For
the above reasons, the Respondent’s Bill of Costs, presented at $3,595.93, is
assessed and allowed at $1,862.11. A Certificate of Assessment will be issued.
“Bruce
Preston”
Email this Content