Kern v. Canada, 2007 FCA 54

Date: 20070118

Docket: A-331-05

Citation: 2007 FCA 54  

BETWEEN:

                                                         HARALD RALF KERN

ELKE KERN

                                                                                                                                        Appellants

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                     Respondent

                                          ASSESSMENT OF COSTS - REASONS

WILLA DOYLE

Assessment Officer

[1]                The respondents’ Bill of Costs was presented following the dismissal with costs to the Respondent of the application for judicial review of the decision of the Honourable Mr. Justice Miller of the Tax Court of Canada.  This Judicial Review was heard in Charlottetown, PE on June 26, 2006.

[2]                Mr. Peter J. Leslie,  counsel for the respondent,  filed a bill of costs and supporting affidavit of disbursements December 1, 2006 requesting  disposition of the assessment  to be without the personal appearance of  the parties.

[3]                A timetable for written submissions and supporting materials was issued.  The self-represented appellants did not file any submissions in opposition.  Counsel for the respondent confirmed no further representations would be submitted in this claim.

[4]                In the respondents’ Bill of Costs the following units are sought: four units for item 19 – memorandum of fact and law, five units for item 22 – counsel fee, per hour in court ( 2.5hours x 2), 1 unit for item 25 – services after judgment and two units for item 26 – assessment of costs.  As previously stated there was no opposition filed to the respondents’ Bill of Costs.

[5]                Before I continue, I must draw to the parties’ attention that, in this case the  matter before the Federal Court of Appeal was a Judicial Review and not an Appeal.  It is for that reason that the four units claimed in regard to item 19 – memorandum of fact and law should in fact be claimed under item 2- preparation and filing of all defences, replies, counterclaims or respondents’ records (emphasis mine) and materials.   I allow the four units as requested. 

[6]                The next item claimed is five units under item 22 – counsel fee, per hour in court (2.5hours x 2 units) again for the reasoning as stated in paragraph [5] this should in fact be claimed under item 14(a) - Counsel fee: to first counsel, per hour in Court; (emphasis mine).  I allow the five units as requested.

[7]                In regard to item 25 – services after judgment, the allowable range is one and in item 26 – assessment of costs the allowable range is two to six.   In both items the respondent has claimed the lowest number of units on the Column III. I allow the one unit and two units respectively.

[8]        Disbursements are awarded in the amount of $269.88 as they were established by Ingrid O’Connells’ affidavit and the attached exhibits.

[9]        The bill of costs presented at $1,709.88 is accordingly assessed and allowed in the amount of $ 1,709.88.  A certificate is issued in the Federal Court of Appeal proceeding for $1,709.88.

                                                                                                                                          “W. Doyle”

                                                                                                                          Assessment Officer

Fredericton, New Brunswick

January 18, 2007

            FEDERAL COURT OF APPEAL

            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  A-331-05

STYLE OF CAUSE:              Harald Ralf Kern and Elke Kern

-and-

Her Majesty the Queen

ASSESSMENT OF COSTS  WITHOUT PERSONAL APPEARANCE OF PARTIES

REASONS  BY:                     W. Doyle

DATED:                     January 18, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: