Date: 20090217
Docket: A-16-98
Citation: 2009 FCA 45
BETWEEN:
CANADIAN SOLIFUELS INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
ASSESSMENT OF
COSTS - REASONS
Johanne Parent
Assessment Officer
[1]
On
September 24, 2001, the Court dismissed with costs the appeal from a decision
of the Tax Court of Canada. The registry of the Court received the respondent’s
bill of costs on December 28, 2007. On January 28, 2008, the appellant’s
counsel sent a letter to the Court indicating that he no longer represented the
appellant and did not intend to appear on the assessment of costs.
[2]
Further
to correspondence with the respondent’s counsel, a timetable for written
disposition of the assessment of the bill of costs was issued, and sent to both
counsel on file on September 15, 2008.
[3]
Considering
counsel for the appellant’s communication with the Court in January 2008 and
the fact that the appellant did not file a notice of change or removal of
solicitor under Rule 124 of the Federal Courts Rules and that no motion for
removal of solicitor pursuant to rule 125 was received, on November 21, 2008, both
counsel for the appellant and the appellant Canadian Solifuels Inc. were sent
directions from the Assessment Officer establishing a new timetable for
submitting submissions. The documents sent via registered mail to the appellant
Canadian Solifuels Inc. were returned to the Registry. Considering rule 140(3)
of the Federal Courts Rules, the same documents served on the appellant
on November 21, 2008 were posted on the public notice board of the Registry in Toronto on December
2, 2008.
[4]
To
date, no submissions or correspondence on costs on behalf of Canadian Solifuels
have been received or filed. I am satisfied that the appellant has been
afforded an opportunity to respond to the costs materials. Counsel for the
respondent filed his affidavit within the prescribed timeframe. The assessment
of the respondent’s bill of costs will proceed despite its non-contestation.
[5]
As
stated on many occasions by Charles Stinson, Senior Assessment Officer, and most
recently in Bell v. Canada [2008] F.C.J. No. 282: “The Federal Courts Rules do not contemplate a litigant
benefiting by having an assessment officer step away from a neutral position to
act as the litigant's advocate in challenging given items in a bill of costs.
However, the assessment officer
cannot certify unlawful items, i.e. those outside the authority of the judgment
and the tariff.”
[6]
In
accordance with the above referenced comments, the disbursements
claimed are allowed as supported by affidavit, not contested and deemed necessary to
the conduct of this matter.
[7]
The
respondent claims as assessable service under Item 17 for the filing of the
notice of intent to participate. This claim is denied as Item 17 only covers
for the preparation, filing and service of the notice of appeal. The claim presented
under Item 18 for the preparation of the Appeal Book is denied as the Court
record indicates that the Appeal Book was prepared and filed by the appellant. Claims
for the filing of the motions’ records in response to the appellant’s motions
for extension of time to file the Appeal Book and for an order extending time
for filing the requisition for hearing, are denied since the Courts’ orders of
July 23, 1999 and June 27, 2000 are silent as to costs. In Janssen-Ortho v.
Novopharm, 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”.
Item 19 is allowed five units for the preparation of the Memorandum of fact and
law. The additional claim for the preparation and filing of an Amended
Memorandum of fact and law is denied as Item 19 makes no provision for amended
documents. Item 22 and 25 are allowed as presented. Item 26 is reduced to 3
units since the assessment of costs necessitated some correspondence but was
uncomplicated and proceeded unchallenged.
[8]
The
bill of costs is allowed for a total amount of $3,132.47
“Johanne Parent”
Toronto, Ontario
February 17, 2009
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