Date: 20080708
Docket: A-553-05
Citation: 2008 FCA 232
BETWEEN:
PRASAD
V. ADUVALA
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Court dismissed with costs this appeal of a decision of the Tax Court of Canada
concerning the statutory time limit for filing a notice of appeal in the latter
Court. I issued a timetable for written disposition of the assessment of the
Respondent’s bill of costs.
[2]
The
claims for counsel fees at or towards the minimum value in each range, other
than item 26 (assessment of costs) at mid-range, are in order and are
allowed as presented. The Appellant objected to the claim ($518.46) for a
process server on the basis that it was excessive and would result in undue
hardship and discrimination because of his address for service. The Appellant
argued that ordinary mail would have been a cheaper alternative for service of
documents (the notice of appearance and the memorandum of fact and law), that
the photocopying claim ($470.01) is excessive and relates to non-essential
documents, i.e. the memorandum of fact and law not referred to during the
hearing, and that these disbursements were overhead and unnecessary given the
absence of complexity and of likelihood of success on the part of the
Appellant.
[3]
My
view, often expressed further to my approach in Carlile v. Canada (M.N.R.)
(1997), 97 D.T.C. 5284 (T.O.) and the sentiment of Lord Justice Russell in
Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment
of costs is “rough justice, in the sense of being compounded of much sensible
approximation,” is that discretion may be applied to sort out a reasonable
result for costs equitable for both sides. I think that my view is reinforced
by the editorial comments (see: The Honourable James J. Carthy, W.A. Derry
Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005-2006
(Aurora, Ont: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an
assessment of costs is more of an art form than an application of rules and
principles as a function of the general weight and feel of the file and issues,
and of the judgment and experience of the assessment officer faced with the
difficult task of balancing the effect of what could be several subjective and
objective factors. I find the claim of $470.01 for photocopies reasonable in
the circumstances and allow it as presented.
[4]
The
Appellant is a self-represented litigant living in Carrying Place, Ontario,
about 175 kilometres (km) east of downtown Toronto (the Respondent’s
address for service). On occasion, there have been problems associated with
service on self-represented litigants, but there is no general practice
precluding the use of ordinary mail for service if permissible under the Rules
and if appropriate in the circumstances. The process server claim flowed
from two invoices from Avanti Paralegal Services located in Caledon, Ontario,
which is about 70 km northwest of downtown Toronto. The
breakdown of the first invoice ($228.28) was: to arrange service of the notice
of appearance ($25.00), prepare affidavit of service ($5.00), file documents
and return stamped copies ($20.00), mileage (297 km @ $0.55 per km = $163.35)
and GST ($14.93). The breakdown of the second invoice ($290.18) was: to collect
the memorandum of fact and law from downtown Toronto and leave it at the
Appellant’s address for service ($65.00), prepare affidavit of service, file it
with the memorandum of fact and law and return stamped copies ($25.00), mileage
(324 km @ $0.55 per km = $178.20), parking ($3.00) and GST ($18.98).
[5]
As
the notice of appearance and the memorandum of fact and law are non-originating
documents, Rule 140(1) (non-personal service including ordinary mail and
courier) applies. Rule 141 provides that the effective date of service of
a document by ordinary mail is the tenth day after it was mailed and by courier
is the date on the receipt. Rule 341(1) provides that a notice of appearance be
served and filed within ten days after service of the notice of appeal. I
cannot think of many situations in which a potential respondent could
assimilate the implications of a notice of appeal, give instructions to counsel
and then meet the Rule 341(1) deadline by ordinary mail. Desormeaux v. Ottawa-Carleton
Regional Transit Commission, [2005] F.C.J. No. 530 (F.C.A.) referred to
Rule 145 in concluding that a party’s entitlement to be served with documents
is the only consequence of not filing a notice of appearance in time. The
party may still participate in the appeal. The Crown’s conduct would be
significantly hampered if not entitled to be served. Financial regulations in
the public sector impose strict guidelines for the selection and use of third
party vendors such as process servers. The mileage claim in the first invoice
is less than the combined distances roundtrip between the offices of the
process server and counsel for the Respondent and the Appellant’s address for
service. The first invoice does not contain excessive charges. I allow it as
presented at $228.28.
[6]
Rule
346(2) provides for service of a respondent’s memorandum of fact and law within
30 days of service of an appellant’s memorandum of fact and law. I have
read both. I doubt that the Appellant’s document posed difficulties for
the preparation of the Respondent’s document. Service by ordinary mail or by
courier was a viable option. I allow the second invoice at a reduced amount of
$100.00.
[7]
The
Respondent’s bill of costs, presented at $2,668.47, is assessed and allowed at
$2,478.29.
“Charles
E. Stinson”
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