Date: 20070503
Docket: A-29-05
Citation: 2007 FCA 179
BETWEEN:
BRYAN
R. LATHAM
Appellant
and
HER MAJESTY THE QUEEN,
HER SERVANT THE SOLICITOR GENERAL OF CANADA,
AND HER AGENTS THE NATIONAL PAROLE BOARD
AND
THE CORRECTIONAL SERVICE OF CANADA
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
These
original signed reasons are filed in this court file (the A-29-05 matter) and a
copy is filed today in each of Federal Court files T-1232-02 (the T-1232-02
matter) and T-552-05 (the T-552-05 matter). They apply in each matter
accordingly. The A-29-05 matter and the T-1232-02 matter addressed facts and
issues distinct from those in the T-552-05 matter, but Mr. Latham's
submissions, for convenience, applied in part to all three matters or,
specifically, to a given matter in its circumstances. I issued timetables for
written disposition of the assessment of the Respondents' bill of costs
presented in each matter. As each bill of costs claimed the minimum unit value
($120.00 per unit) in the available range for each counsel fee item listed, and
no disbursements, I have only summarized the parties' respective submissions on
entitlement to given counsel fee items. As well, submissions resulting in the
withdrawal of given items from initial versions of the bills of costs are not
summarized.
[2]
The
T-1232-02 matter, an application for judicial review of a decision (July 2002)
of the Appeal Division of the National Parole Board (the Board) affirming the Board's
decision that Mr. Latham (the Appellant or the Applicant as the context
requires) should not receive any form of conditional release because he posed
an undue risk to society, was dismissed with costs. The A-29-05 matter, an
appeal of the judgment in the T-1232-02 matter, was dismissed for delay by
order silent on costs. The T-552-05 matter, an application for judicial review
of a decision (February 2005) of the Appeal Division of the Board affirming the
Board's decision denying parole for the Applicant, was dismissed with costs.
I. The Respondents' Position
[3]
Relative
to the T-1232-02 matter and the A-29-05 matter, the Respondents argued further
to Solosky v. The Queen, [1977] 1 F.C. 663 (T.D.); affirmed without
comment on this point [1978] 2 F.C. 632 (C.A.); affirmed without comment [1980]
1 S.C.R. 821, that the Appellant's position on his capacity to pay costs is
irrelevant in an assessment of costs. The Respondents argued further to Mennes
v. Canada (May 4, 1999), Doc. T-2019-98 (Fed. Assess. Off.) that, in the
absence of a stay of proceeding, a pending appeal of a judgment for costs does
not preclude assessment of said costs.
[4]
Relative
to the order dated February 27, 2003 (silent on costs and denying further
production) in the T-1232-02 matter, the Respondents noted the Court's
direction dated October 24, 2003, that the judge presiding over the judicial
review hearing would settle the Applicant's concerns for potential appeal of
said order. The presiding judge did not mention said order, but did dismiss the
application for judicial review with costs, thereby entitling the Respondents
to costs for said order dated February 27, 2003. The Respondents conceded that
the order dated May 9, 2005, in the A-29-05 matter dismissing the Appellant's
motion for consolidation of appeals was silent on costs, but argued further to
Rule 400(3)(a) (result) that the associated costs should be assessable against
the party unsuccessful in both the motion and the appeal. The February 15, 2006
order denying leave to appeal to the Supreme Court of Canada clearly awarded
costs to the Respondents for said motion. The Respondents are entitled to the
minimum units claimed in accordance with the Tariff for the other counsel fee
items, including an item 26 (assessment of costs) fee in each bill of costs.
[5]
Relative
to the T-552-05 matter, the Respondents argued that the use of a teleconference
did not preclude the actual work associated with items 13 (preparation for
hearing of the judicial review) and 14(a) (oral submissions at the hearing of
the judicial review). Given that costs of the judicial review were awarded to
the Respondents, the item 26 claim, at the minimum 2 units, for assessment of
said costs is proper. The process of assessment and collection of costs in the
T-552-05 matter would not hinder the Applicant from bringing future actions or
judicial reviews. It is apparent from the Applicant's capacity to obtain
funding to bring actions that he, in fact, does have sufficient funds to pay
costs.
II. The Applicant's/Appellant's
Position
[6]
Relative
to the T-1232-02 matter, the Applicant asserted that the Court directed that
the February 27, 2003 order would be reconsidered by the judge presiding over
the hearing of the judicial review, yet the Respondents still claim for item
5. The claim of 2 units for item 8 (interrogatories) should be cut to 1 unit
because the associated work was minimal. Relative to the A-29-05 matter, the
Appellant argued that the item 21(a) claim for preparation of the response to
the Appellant's motion addressing consolidation of appeals should be disallowed
because, although the motion was dismissed, no costs were awarded. The
Respondents' item 21(a) claim for preparation of the response to the
Appellant's motion addressing leave to appeal to the Supreme Court of Canada
should be disallowed because the Federal Court of Appeal erred in awarding
costs against the Appellant in the face of existing principles and practice
holding that costs should not be awarded against inmates forced to represent
themselves and asserting process concerning the legality of confinement.
Relative to the T-552-05 matter, the Applicant argued that, if anything is to
be allowed, it should be restricted to item 2 (preparation of the Respondents'
record for the judicial review) thereby precluding item 13 (preparation for the
judicial review) and item 14(a) (appearance at the judicial review) claims
because the judicial review proceeded by teleconference.
[7]
Relative
to all three matters, the Applicant/Appellant asserted the record indicates
that he is indigent. Interest on any costs should be denied. Collection of
costs should not hinder his future access to court process and should be frozen
until six months after he is released on full parole. These assessments of costs
are premature because he is currently attempting to obtain legal representation
for appeals to the Supreme Court of Canada. Nothing should be allowed for item
26 (assessment of costs) because the Respondents did not give prior notice that
they would attempt to collect costs. That is, the assessments were unnecessary.
If anything is allowed, it should be restricted to a single item 26 fee because
a single submission was sufficient to address these three matters.
III. Assessment
[8]
The
existence of outstanding appeals does not prevent the Respondents from proceeding
with these assessments of costs: see Culhane v. ATP Aero Training Products
Inc., [2004] F.C.J. No. 1810 (A.O.) at para. [6]. In Clarke v. Canada (Attorney
General),
[2005] F.C.J. No. 814 (A.O.), the Applicant (an inmate), in arguing before me
that his limited resources coupled with the potential amount of assessed costs
would interfere with his rehabilitation, correctly conceded in my view that
both capacity to pay and likelihood of satisfaction of the assessed costs are
irrelevant in the determination of issues of an assessment of costs. That is, I
cannot interfere with the exercise of the Court's Rule 400(1) discretion which
established the Respondents' right for recovery here of assessed costs from the
Applicant/Appellant. I do not think that financial hardship falls within the
ambit of "any other matter" in Rule 400(3)(o) as a factor relevant
and applicable by an assessment officer, further to Rule 409, to minimize
assessed litigation costs. Self-represented litigants and litigants represented
by counsel receive the same treatment relative to the provisions for litigation
costs: see Scheuneman v. Canada (Human Resources
Development), [2006] F.C.J. No. 1278 (A.O.). The Courts here made their
findings concerning entitlements to costs: I have no jurisdiction to interfere.
[9]
For
the T-1232-02 matter, the Applicant asserted that the Court had directed that
the judge presiding over the judicial review would reconsider the February 27,
2003 order (motion for production). In fact, the Court did not so direct and instead
gave directions relative to a potential appeal. This does not assist in the
disposition of assessment issues; but given that the Applicant objects to an
item 5 claim further to an order silent on costs, I will disallow it further to
my conclusions in Balisky v. Canada (Minister of Natural Resources),
[2004] F.C.J. No. 536 (A.O.) at para. [6] and Aird v. Country Park
Village Properties
(Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at para. [10]. As for the May
9, 2005 order silent on costs in the A-29-05 matter, Rule 409 permits me to
apply Rule 400(3)(a) (result), but that does not empower me to assess costs if
the Court has not first visibly exercised its Rule 400(1) jurisdiction to award
costs to the Respondents. I also disallow this item 5 claim.
[10]
There
were issues particular to each bill of costs. Assessment of costs must precede
execution for satisfaction of costs. I think it appropriate in these
circumstances to allow the minimum item 26 claim in each matter. In all other
respects, the fee claims are in order and are allowed. The amended bill of
costs in the T-1232-02 matter, presented at $2,280.00, is assessed and allowed
at $1,920.00. The bill of costs in the A-29-05 matter, presented at $720.00, is
assessed and allowed at $480.00. The amended bill of costs in the T-552-05
matter is assessed and allowed as presented at $1,560.00.
"Charles
E. Stinson"
Email this Content