Date: 20090923
Docket: A-392-08
Citation: 2009 FCA 272
BETWEEN:
RUSSELL WITT
Appellant
and
HER MAJESTY THE QUEEN
Respondent
ASSESSMENT OF
COSTS - REASONS
Johanne Parent
Assessment Officer
[1]
On
April 23, 2009, on consent of the respondent, the Court allowed the appeal of
this matter with costs. A timetable for written disposition of the assessment
of the appellant’s Bill of Costs was issued on July 17, 2009 and sent to both
parties. Neither counsel for the appellant nor the respondent filed representations
within the prescribed timeframe, nor was any request to extend the time to
file said submissions received. The assessment of the appellant’s Bill of Costs
will proceed considering that “the assessment officer cannot certify unlawful
items, i.e. those outside the authority of the judgment and the Tariff” (Dahl v. Canada, 2007
FC 192, [2007] F.C.J. No. 256).
[2]
Despite
the fact that the Bill of Costs mentions that it was prepared in accordance
with Tariff B of the Federal Courts Rules, in most instances, the
appellant claimed the number of hours spent by counsel (first and second),
students-at-law and law clerks for each service rendered without reference to
the number of units. Considering the wording of Rule 407 of the Federal
Courts Rules which reads: “Unless the Court orders otherwise,
party-and-party costs shall be assessed in accordance with column III of the
Table of Tariff B”, I have tried to convert the number of hours claimed to unit
values to reflect Tariff B.
[3]
Furthermore,
all through the Bill of Costs, services are claimed for second counsel,
students-at-law and law clerks. In the assessable services covered by Tariff B
sub-section F - Appeals to the Federal Court of Appeal, only Item 22 provides
for second counsel and in this case, as before the Federal Court, the counsel
fee claimed for second counsel is only assessable if specifically directed by
the Court. I could not find in the Court file any orders or directions from the
Court that authorized second counsel and therefore, I have not considered any
of the amounts claimed for second counsel.
[4]
Work
time allocations are claimed for students-at-law and law clerks throughout the
appellant’s Bill of Costs without further proof of services rendered. Item 28
of Tariff B covers services rendered by students-at-law and law clerks. In Tuquabo
v. Canada, 2009 FCA 126, at paragraph 10, it was held that:
Item 28 provides for "services in a province by
students-at-law, law clerks or paralegals that are of a nature that the law
society of that province authorizes them to render". The Respondents have
submitted a claim for the services of a paralegal. They have not, however,
provided any evidence concerning the services rendered by the paralegal. Having
reviewed the written submissions of the Respondents and the affidavit of
Madeline MacLellan, I can find no reference to paralegal services. Further,
there is no indication that the fee relates to services that are of the nature
that the law society of the province authorizes paralegals to render. Having
regard to the above, the Respondents' claim under Item 28 cannot be allowed.
As there is no evidence that the services
claimed were “of a nature that the law society … authorizes them to render”, I
have not taken into consideration the amounts claimed for such services.
[5]
The
services claimed for the preparation and filing of the Notice of Appeal (Item
17) and for the requisition for hearing (Item 20) are allowed as claimed.
[6]
Under Item
18, six hours were claimed for the preparation of the Appeal Book. Tariff B only
provides for one unit for such service and one unit will for that reason, be
allowed.
[7]
The main
counsel on the file claims 3.9 hours for the preparation of the memorandum of
fact and law. Four units will be allowed for that service.
[8]
Counsel
further claims time under Item 21 for the preparation and filing of two motions.
These claims will be denied since the Court’s orders of September 24, 2008 and
April 2, 2009, are silent as to costs. In Janssen-Ortho Inc. v. Novopharm
Ltd., 2006 FC 1333, [2006] F.C.J. No. 1684, the Court determined that, “Any
pre-trial Order that is silent as to costs means that no costs have been
awarded to any party”.
[9]
Item
22 (Counsel fee on hearing of appeal) is allowed as presented, three units
multiplied by the hours in Court.
[10]
In
the Bill of Costs, one unit is claimed under Item 26 (Assessment of costs).
This was certainly an oversight on the part of appellant’s counsel since the
minimum number of units under this Item is two. I allow the minimum unit value
for such service.
[11]
With
regard to the disbursements claimed, they are not contested and I consider them
charges necessary to the conduct of this matter. The total claimed was revised
to properly reflect the charges specified in the Bill of Costs. The amount
claimed is therefore allowed at $2,138.61.
[12]
The
appellant’s Bill of Costs is allowed for a total amount of $4,088.61.
“Johanne Parent”
Toronto, Ontario
September 23,
2009
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