R. v. Ayangma, 2003 FCA 346

Date: 20030924

Docket No. A-74-02

Neutral Citation: 2003 FCA 346

BETWEEN:

                                                                    Dr. Noel Ayangma

                                                                                                                                                       Appellant

                                                                              - and -

                                                              Her Majesty the Queen

                                                                                                                                                   Respondent

                                               ASSESSMENT OF COSTS - REASONS

FRANÇOIS PILON

Assessment Officer

[1]         On October 11, 2002 the Court had ordered the consolidation of file A-467-02 with this file. Both appeals were heard together on January 27, 2003. In file A-74-02 (the lead file) judgment dismissing the appeal with costs was delivered orally from the Bench.

[2]         Mr. Gunvaldsen-Klaassen represents Her Majesty the Queen and Dr. Noel Ayangma, the appellant, is acting in his own behalf. The assessment of the respondent's two bills of costs took place on September 11, 2003 by telephone conference along with the assessment in the Trial file T-195-01. The arguments lasted approximately thirty minutes.

[3]         The appellant argues that the maximum number of units (7) for the preparation of the respondent's memorandum of fact and law is too high. In response counsel for the Crown contends that much work was required to address all the issues raised in both appeals, more so than the usual case. I find Mr. Gunvaldsen-Klaasssen's explanations satisfactory. I also note that counsel had filed two large volumes of case law along with his memorandum.

[4]         The respondent claims 5 units (2.5 hours x 2 units) for counsel fees at the hearing of each appeal.         The appellant argues that the respondent should claim only once for this service because both appeals were heard together and that 2 units are too much considering that the judges rendered judgment on the Bench without the need to hear respondent's arguments.    Mr. Gunvaldsen-Klaassen replies that this is an indication that Dr. Ayangma's appeals were without merit.

[5]         Be that as it may, Mr. Gunvaldsen-Klaassen chose to split the claim for counsel fees, claiming 2.5 hours in each bill of costs. I find this approach acceptable because, either way, the end result would be the same as requesting 5 hours in only one bill.    However, the abstract of hearing indicates that the actual duration of the hearing(s) was four hours, not five. Accordingly, 4 units (2 hours x 2 units) will be allowed for each bill of costs.

[6]         The respondent includes two other claims for services under item 27, that are " for such other services as may be allowed by the assessment officer..." for:

i)          the preparation for the hearing (5 units) and

ii)          the response to the notice of appeal (1 unit)

[7]         The appellant asks that these be disallowed. In his submissions Mr. Gunvaldsen-Klaassen argues that the work done by the respondent in response to the filing of the notice of appeal and for the preparation for the hearing is not accounted for in the Tariff. Compensation is therefore sought under item 27. Counsel is correct that Part F of Tariff B does not provide indemnification for those services to a respondent in an appeal. However, I view these two services as "ordinary" steps in appeal proceedings. In my opinion those who drafted the Rules would have made provisions in Part F of Tariff B if it had been their intention to compensate parties for these specific services.

[8]         Assessment officers do not have the authority to "create" additional assessable services where none exist. I think item 27 is intended to reward parties for services rendered or expenses incurred in exceptional circumstances only. These two items are therefore disallowed. Finally, the minimum of 2 units for the assessment of costs is allowed.

[9]         The charges submitted for photocopying, courier services, research on Quick Law and cost for postage are either supported by invoices or appear to have been necessary and reasonable in the conduct of the litigation.

[10]       The respondent's bill of costs is assessed and allowed in the amounts of $1,430 for fees and $557.96 for disbursements. A certificate of assessment will issue in the amount of $1,987.96.

Halifax, Nova Scotia                                                                                                                                                                                            

September 24, 2003                                                                                  François Pilon

Assessment Officer

                                                    FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                 A-74-02

STYLE OF CAUSE: Dr. Noel Ayangma v. Her Majesty the Queen

PLACE OF HEARING:         Halifax, N.S. and Charlottetown, P.E.I.

DATE OF HEARING:           September, 11, 2003

REASONS FOR ASSESSMENT OF COSTS BY: François Pilon

DATED:                                    September 24, 2003

APPEARANCES BY:

Dr. Noel Ayangma, on his own behalf                                                                      For the apppellant

Mr. Gunvaldsen-Klaassen                                                                                        For the respondent

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General

Ottawa, ON                                                                                   For the Respondent