Date: 20051011
Docket: A-723-01
Citation: 2005 FCA 325
BETWEEN:
TREVOR NICHOLAS CONSTRUCTION CO. LIMITED
Appellant
and
Her Majesty The Queen as represented by
The Minister for Public Works Canada
Respondent
ASSESSMENT OF COSTS - REASONS
B. PRESTON
ASSESSMENT OFFICER
[1] The within Appeal was commenced December 17, 2001. By way of Judgment dated June 24, 2003 the Court dismissed the Appeal with costs. There were no directions concerning the assessment of costs.
[2] On February 2, 2005 a Notice of Appointment was issued setting the assessment of the Respondent's costs down for April 14, 2005 at 10:00 a.m. The parties were told that any written submissions to be relied upon had to be filed on or before April 12, 2005.
[3] The assessment of the costs on this file followed immediately after the assessment of costs on file T-2034-91.
[4] At the commencement of the assessment on April 14, 2005, Mr. Susin, representing the Appellant indicated that he did not receive the Affidavit of Disbursements of Karen Hedges. The assessment was adjourned for 45 minutes to give Mr. Susin an opportunity to review the Affidavit of Disbursements on this file and T-2034-91.
[5] Upon resumption, Mr. Susin objected that he did not have all his records with him. At that point it was determined that we would proceed, however, should Mr. Susin find that he was missing documentation, the Court file would be made available to him. Should this not suffice, an adjournment would be entertained.
[6] The Appellant inquired as to whether a unit value of $100.00 was to be used. After a brief explanation, the Appellant was informed that pursuant to Tariff B of the Federal Court Rules, 1998 a wait value of $110.00 would be used in the assessment.
Assessment
[7] Counsel for the Respondent submitted assessable fees as follows:
Item 19 - 5 units;
Item 21(a) - 2 units;
Item 22(a) - 3 units / hr for 7 hrs;
Item 25 - 1 unit;
Item 26 - 3 units.
[8] With respect to Item 19, the Appellant submitted that the onus is on the Appellant to prove the case. The Appellant further submitted that the justification for 5 units did not seem evident given that it was the Appellant who must prove the case.
[9] Having regard to Item 21(a), the Appellant submitted that there was no order as to costs concerning the motion to file fresh evidence. Counsel for the Respondent concurred that there was no order as to costs for this motion.
[10] Concerning Item 22(a), the Appellant submitted that, based on the evidence, fees should be at the low end of Column III. The Appellant further submitted that 7 hours was too long and remembers the hearing being cut shorter.
[11] With respect to Item 26, the Appellant submitted the assessment should be allowed at 2 units.
[12] Counsel for the Respondent submitted that the amounts presented are at or near the low end of Column III for the items submitted and should be allowed as presented.
[13] With the exception of Item 21(a) assessable fees are allowed as presented. The Appellant submitted that the justification for 5 units under Item 19 was not evident. In its reasons for judgment dated June 24, 2003, at paragraph 3, the Court writes:
[3] In its written submissions, the appellant advanced twenty-two grounds in support of this appeal, some of which allege errors of fact or inferences of fact on the part of the Trial Judge; others allege errors of law; and another raises an allegation of an apprehension of bias against the appellant on the part of the Trial Judge.
[14] Having regard to the above, the fact that the Respondent was required to respond to 22 grounds in support of the appeal is justification enough to allow 5 units under Item 19.
[15] Having regard to Items 22(a), 25 and 26, these Items are allowed as presented. As submitted by Counsel for the Respondent, these Items were submitted at or near the low end of Column III and as indicated above, the Respondent was required to address 22 grounds in support of the appeal. Further, concerning the duration of the hearing of the appeal, having reviewed the entire file including the abstract of hearing for both October 9, 2002 and June 5, 2003, the duration of 7 hours, as submitted by the Respondent is allowed. The actual duration was in excess of 6.5 hours spread over two days.
[16] Having regard to Item 21(a), preparation for a motion, this amount cannot be allowed as there was no order as to costs for the motion to file fresh evidence.
[17] Having regard to the above, and on the facts of this particular case, assessable services, submitted at $3,520.00 are allowed at $3,300.00.
Disbursements
[18] The only disbursement submitted was for photocopies in the amount of $698.54.
[19] The Appellant submitted he is unable to determine what the copies relate to or even if they concern this proceeding.
[20] Although counsel for the Respondent was able to relate the photocopies to this proceeding through reference to a purchase order number that was the same as in the Federal Court proceeding, he was not clear as to which step in the proceeding the photocopies related to on this particular matter.
[21] Having reviewed the file in as entirety, it is clear that the invoices from March 2002, as presented in the Affidavit of Karen Hedges sworn August 31, 2004, relate to the preparation and filing of the Respondent's Memorandum of Fact and Law and the Respondent's Book of Authorities. Consequently, these are allowed as submitted.
[22] On the other hand, the two invoices dated June 20, 2001 (04119702) and June 22, 2001 (04119811) predate the filing of the Notice of Appeal. As these invoices predate the filing of the Notice of Appeal, these disbursements cannot be allowed.
[23] Having regard to the above, disbursements submitted at $698.54 are allowed in the amount of $329.20.
[24] For the reasons above, and on the facts of this particular case, costs of the Respondent, inclusive of fees and disbursements, are allowed in the amount of $3,629.20.
"Bruce Preston"
Bruce Preston, Assessment Officer
Toronto, Ontario
October 11, 2005
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