Cleroux v. Canada (Attorney General), 2003 FCA 417

Date: 20031106

Docket: A-271-01

Citation: 2003 FCA 417

BETWEEN:

                                                             NORMAND CLÉROUX

                                                                                                                                                       Appellant

                                                                              - and -

                                                         THE ATTORNEY GENERAL

                                                                        OF CANADA

                                                                                                                                                   Respondent

                                               ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                 The Appellant brought an action (Federal Court file T-1759-00) for damages as a function of his termination of employment with the federal public service. On April 20, 2001, the Federal Court concluded that it had no jurisdiction, that his Statement of Claim was an abuse of process of the Court, and accordingly struck his action with costs. On June 10, 2002, the Federal Court of Appeal dismissed his appeal from that decision with costs. I directed that assessment of the Respondent's bill of costs proceed by way of written submissions.

The Appellant's Position

[2]                 The Appellant's written submissions were essentially his summary of the history of his attempts for relief relative to his disputes with his employer. As well, the Appellant portrayed himself as a victim and asserted that he would be unable to satisfy assessed costs.

The Respondent's Position

[3]                 The Respondent argued further to Chaperon v. Canada, [1992] F.C.J. No. 167 (F.C.T.D.) (T.O.), that an asserted inability to pay assessed costs is irrelevant and that the Appellant's reply submissions generally were irrelevant. The Respondent argued that the bill of costs is reasonable given the subject matter of this litigation, the reasons of the Court and the Appellant's conduct.

[4]                 The Respondent argued further to Rules 409 and 400(3)(k) and (o) that higher costs are justified for several reasons as a function of unnecessary and vexatious conduct:

(i)          the Federal Court clearly concluded that the matter was beyond its jurisdiction;

(ii)         the Appellant brought the same action in the Ontario Superior Court of Justice where it was also dismissed for want of jurisdiction;

(iii)        the Appellant could properly have pursued relief, but did not, in two other available and appropriate jurisdictions;

(iv)        the reasons of the Federal Court of Appeal characterized the Appellant's conduct as an abuse of process;

(v)         the Appellant insisted on the inclusion of significant amounts of unnecessary material in the appeal book while neglecting to include material agreed upon between the parties; and

(vi)        the Appellant's failure to include the agreed-upon material, which was important for the Respondent's case, necessitated a motion for permission to file a supplemental appeal book and to extend the time for the filing of the Respondent's Memorandum of Fact and Law, both of which requests were allowed and both of which requests the Appellant unnecessarily opposed.

[5]                 The Respondent argued for the maximum 7 units for item 19 (Memorandum of Fact and Law) as a function of lengthy and significant research of legal precedents and the need to review confusing and voluminous assertions of fact in the Appellant's material. The Respondent noted that the hearing of the appeal lasted approximately 2.25 hours and argued that item 22(a) permits a claim, for appearance of counsel, of the maximum 3 units per hour for blocks of time in excess of an hour, ie. here, 2 hours at 3 units per hour plus 0.25 hours at 3 units per hour. The Respondent argued that $110.00 per unit is a modest charge for services such as item 18 (preparation of appeal book) and item 25 (services after judgment), ie. reporting to the client plus administrative follow-up and that the evidence supports claimed disbursements of $858.89. The Respondent argued further to Rule 408(3) that $330.00 (3 of 6 units from the available range for item 26) should be added for the work done relative to this assessment of costs.

Assessment

[6]                 The Respondent had asked that the Appellant's reply submissions not be considered because they were tendered outside the timeframe of my directions. In the circumstances of this matter, I permitted them to be filed. They misconceive entirely the purpose of an assessment of costs, ie. to crystallize, in a quasi-judicial proceeding, the amount of an award of litigation costs. The Respondent is correct that fractions of hours may be used as multipliers for the calculation of the appropriate indemnification for appearances at hearings, including motions. I find the bill of costs as presented at $2,591.39, as well as the proposed addition of $330.00 for the assessment of costs, to be modest and reasonable in the circumstances of this case, with particular regard to the factor of abuse of process. I allow the bill of costs of the Respondent at $2,921.39.

(Sgd.) "Charles E. Stinson"

     Assessment Officer

Vancouver, B.C.

November 6, 2003

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             A-271-01

STYLE OF CAUSE:                           NORMAND CLÉROUX

- and -

THE ATTORNEY GENERAL OF CANADA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES

REASONS FOR ASSESSMENT OF COSTS:                      CHARLES E. STINSON

DATED:                                                                                       November 6, 2003

SOLICITORS OF RECORD:

Morris Rosenberg                                                                           FOR RESPONDENT

Deputy Attorney General of Canada