Date:
20110517
Docket:
A-252-09
Citation: 2011 FCA 168
[ENGLISH TRANSLATION]
Present: JOHANNE PARENT, Assessment Officer
BETWEEN:
SIMON
BEAUCAIRE
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Written assessment of costs
without appearance of the parties.
Reasons
and certificate issued in Toronto, Ontario, on May 17, 2011.
REASONS
FOR ASSESSMENT: JOHANNE PARENT, Assessment
Officer
Date:
20110517
Docket:
A-252-09
Citation: 2011 FCA 168
Present: JOHANNE
PARENT, Assessment Officer
BETWEEN:
SIMON
BEAUCAIRE
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
REASONS
FOR ASSESSMENT
JOHANNE
PARENT, Assessment Officer
[1]
On
April 22, 2010, the Court dismissed with costs the notice of appeal from a
decision made by the Tax Court of Canada on May 21, 2009. On February 16, 2011,
the respondent filed its bill of costs with the Court. Directions were issued
on February 24, 2011, informing the parties that the assessment of costs would
proceed in writing and of the timelines for filing representations.
[2]
To
support its bill of costs, the respondent served and filed representations, as
well as Marie-Claude Landry’s affidavit. On March 29, 2011, the appellant filed
his representations with the Court.
[3]
In
its representations, the respondent argues that the costs claimed are
reasonable, that they were necessary for the conduct of the proceeding, and
that they are limited to the items set out in Tariff B of the Federal Courts
Rules. As for the appellant, he claims that the costs are abusive and
unjustified, that no work was carried out by the respondent and that the case
ended once the deadlines to file documents were reached. The appellant also
submits that he would not be financially able to cover said costs and that he
would have dropped the case for fear of them.
[4]
When
I read the Court record, I noticed that on February 15, 2010, a letter from the
respondent to request the dismissal of the appeal for failure was addressed to
the Court and served on the appellant. On March 9, the Court enjoined the
appellant to justify the reasons that the appeal should not be dismissed due to
a delay. In response, the respondent addressed another letter to the Court that
served notice on the appellant, requesting that the case be dismissed with
costs. Based on a review of the record, the appellant reportedly did not
respond to any of these mailings. Despite Rule 165 of the Federal Courts
Rules, which allows a party to “[...] discontinue all or part of a
proceeding by serving and filing a notice of discontinuance,” Mr. Beaucaire
allegedly abandoned his appeal without informing the Court or the opposing
party. When the appeal was dismissed, the Court—which was exercising its full
discretion—considered that awarding costs to the respondent was justified. At
this stage of the proceeding, the assessment officer has no other choice but to
assess the reasonableness of the costs claimed in light of the evidence, the
parties’ representations, and the Court record.
[5]
Two
units are requested for filing and serving the notice of appearance dated June
29, 2009, under item 27 of Tariff B. Despite the appellant’s claims, said
document was prepared by the respondent and served. However, in light of current
case law, a single unit will be allocated for this service (see Bayer
Healthcare AG v Sandoz Canada Inc. 2009 FC 691 at para 27). The expenses
claimed under item 26 for taxation will be granted—as requested—because the
respondent saw to preparing, serving and filing the set of costs, an affidavit,
and a responding letter.
[6]
As
for the appellant’s argument concerning his inability to pay the expenses, I
will refer to Nike Canada Ltd. v Jane Doe, [1999] FCJ, No. 1018 (FC) and
Inverhuron & District Ratepayers’ Assn v Canada 2001 FCT 410, where
it was clearly established that a party’s inability to see to the payment of
expenses is not a deciding factor in their allocation.
[7]
The
disbursement claimed in the bill of costs is considered to be an expense that
is necessary for the conduct of this case. The amount is justified and
reasonable, so it is awarded.
[8]
The
respondent’s bill of costs is allowed in the amount of $395.00.
“Johanne Parent”
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