Date: 20030717
Docket: A-56-00
Citation: 2003 FCA 306
BETWEEN:
GREGORY H. BOWLAND
Appellant
and
HER MAJESTY THE QUEEN
Respondent
ASSESSMENT OF COSTS - REASONS
CHARLES E. STINSON
Assessment Officer
[1] This appeal, addressing alleged errors by the Tax Court of Canada concerning the deductibility of expenses to restore a rental property following a fire, was dismissed with costs. I issued a timetable for disposition in writing of the Respondent's bill of costs.
The Respondent's Position
[2] The Respondent argued that the amounts claimed and recovered, the importance and complexity of the issues and the volume of work shall be considered in determining the number of units to be allowed. The Respondent asserted that the bill of costs for $1, 640.60, exclusive of costs of the assessment of costs, is within the limits of Tariff B. The Appellant did not respond to several requests for payment nor did he explain, before the Respondent had to initiate this assessment of costs, what difficulties, if any, that he had with the bill of costs. The Respondent argued that, given complete success on the appeal, the bill of costs should be assessed and allowed as presented, together with an appropriate allowance for the assessment of costs.
The Appellant's Position
[3] The Appellant representing himself (his solicitor of record having advised by letter dated September 28, 2001 that it no longer represented him) asserted that the Respondent had assured him that he would not have to bear costs. The Respondent objected to the amount of fees. He asserted that there was no breakdown of disbursements for service of documents or for photocopying. The Respondent argued that consideration of success concerning issues of capital cost versus current expense is subjective in nature and therefore the Respondent's assertion of complete success is not correct. The Appellant asserted that health problems interfered with meaningful negotiations with the Respondent's legal representative and that he does not have the means to pay the costs.
Assessment
[4] I concluded in The Minister of Citizenship and Immigration v. Wen Bin Yu 2003 FCT 789 that ability to pay is not a factor in an assessment of costs. The Appellant was able to respond to my written timetable. Written communications with the Respondent's legal representative would have been a viable tool for negotiations. The Respondent has claimed the maximum for fee items, but has not claimed all possible fee items.
[5] I concluded at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen 2001 FCT 999 that the same point in the ranges throughout the Tariff need not be used as each item for the services of counsel must be considered in its own circumstances. As well, I concluded that some generalization is required between the values in a given range . Here I think that preparation for the hearing of the appeal was the key service. I allow 5 units for item 19 (memorandum of fact and law) from the available range of 4-7 units and the 1 unit claimed for item 25 (services after judgment). I allow item 22(a) (appearance at the appeal) at 2 units per hour from the available range of 2-3 units. I allow item 26 at 2 units from the available range of 2-6 units. The disbursements of $71.00 and $19.60 claimed for service of documents and for photocopying respectively are reasonable for this litigation and likely do not include expenses associated with the assessment of costs. I allow them as presented.
[6] The Respondent's bill of costs, presented at $1,640.60, is assessed and allowed at $1,390.60.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
July 17, 2003
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-56-00
STYLE OF CAUSE: Gregory H. Bowland v. HMQ
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR : CHARLES E. STINSON
DATED: July 17, 2003
SOLICITORS OF RECORD:
D'Arcy & Deacon FOR APPELLANT
Winnipeg, Manitoba
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Email this Content