Date: 20230313

Docket: A-271-20

Citation: 2023 FCA 57

[ENGLISH TRANSLATION]

Assessment of costs without appearance of the parties.

Certificate of Assessment delivered at Ottawa, Ontario, on March 13, 2023.

Date: 20230313

Docket: A-271-20

Citation: 2023 FCA 57

REASONS FOR ASSESSMENT

AUDREY BLANCHET, Assessment Officer

[1] On September 25, 2020, the appellants filed a notice of appeal (A-224-20) from the order of September 15, 2020, dismissing their motion for an interlocutory injunction in file number T-922-20. On November 2, 2020, the appellants appealed (A-271-20) the judgment rendered on October 1, 2020, in consolidated files T-1139-19 and T-1227-19, in which the Court dismissed the first application for judicial review (T-1139-19) and allowed the second (T-1227-19) in part. On May 19, 2021, these two files were heard jointly by the Court and, through a judgment dated October 6, 2021, the Court dismissed the two appeals with costs in favour of the respondents.

[2] On February 4, 2022, the respondents filed a bill of costs for the assessment of costs incurred in this case. On March 14, 2022, the parties received a direction as to the dates for filing their respective written representations. The following documents were filed by the parties for the purpose of this assessment: on April 12, 2022, the respondents filed written representations in support of the bill of costs; on May 13, 2022, the appellants filed written representations in reply; and, on May 19, 2022, the respondents filed a reply.

I. Preliminary Issue

A. Determination of the level of costs

[3] The parties agree that the bill of costs be assessed in accordance with column III of the table to Tariff B, as set out in rule 407 of the Federal Courts Rules, SOR/98-106 (the Rules). Column III provides for a range of units available for most assessable services. The respondents contend that they should be allowed the high end of the scale in column III in view of the factors set out in Rule 400(3) [factors], in particular: (c) the importance and complexity of the issues; (d) the apportionment of liability; (g) the amount of work; (i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding; and (k)(i) whether any step in the proceeding was improper, vexatious or unnecessary.

[4] In reply, the appellants first submit that the costs should instead be allowed at the low end of the scale in column III of the table to Tariff B based on the following factors: (c) the importance and complexity of the issues (fundamental rights) and (i) the conduct of the parties during the proceeding. Further in their written representations, they argue that the imbalance of power between the parties resulting from financial resources disparity should be considered in the assessment of costs. Ultimately, the appellants call upon this Court to exercise its discretion to deny the respondents costs.

In reply, the respondents further argue that [translation] “the appellants are mischaracterizing the role conferred on the assessment officer” because the costs have already been awarded (Reply of the respondents at para. 5). In this regard, they rely on Pelletier v. Canada (Attorney General), 2006 FCA 418 at paragraph 7. Since I agree with the respondents’ arguments on this point, it is appropriate to reproduce an excerpt that is relevant to this case: [...] Under section 405, an assessment officer “assesses” costs, which assumes that costs have been awarded. Section 406 provides that an officer does this at the request of “a party who is entitled to costs”, which again presupposes that an order for costs was made in favour of that party. Under section 407, the officer assesses the costs in accordance with column III of the table to Tariff B “unless the Court orders otherwise.” Section 409 provides that “[i]n assessing costs, an assessment officer may consider the factors referred to in subsection 400(3).” In short, the duty of an assessment officer is to assess costs, not award them. An officer cannot go beyond, or contradict, the order that the judge has made. If the judge gives a direction to the officer under section 403, the officer must comply with it. [Emphasis added.]

[5] In terms of the importance and complexity of the issues, even though the appellants have raised issues relating to the Canadian Charter of Rights and Freedoms, the Court indicated in its reasons for judgment, at paragraph 96, that “the appellants […] rais[e] essentially the same arguments that they raised unsuccessfully at trial.” Similar observations were made with respect to all the issues (Reasons for Judgment at paras. 63, 64, 69, 78, 94, 98 and 99). For this reason, the appellants have not convinced me that their grounds of appeal raise complex or important issues and that this factor should be used to justify allowing units at the low end of the scale in column III. Conversely, the appellants’ erroneous reasoning on this point, combined with the above comments of the Court, instead support the respondents’ position that a step by the appellants in the proceeding may have been improper, vexatious or unnecessary (Rule 400(3)(k)(i)).

[6] With regard to the financial resources disparity, the respondents rightly note that this is not a factor listed in Rule 400, especially since the Court has previously ruled that this is not a relevant factor in the assessment of costs (Leuthold v. Canadian Broadcasting Corporation, 2014 FCA 174 at para. 12). Indeed, “[i]n an award of costs, neither the ability to pay nor the difficulty of collection should be a deciding factor” (Nike Canada Ltd. et al. v. Jane Doe and John Doe et al., [1999] F.C.J. No. 1018, at para. 11).

[7] As an assessment officer, I am required to determine the number of units that can be allowed within the full range of units set out in column III (Rule 407; Hoffman-La Roche Limited v. Apotex Inc., 2013 FC 1265 at para. 8). The courts have noted time and again that “each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation” (Starlight v. Canada, 2001 FCT 999 at para. 7). Therefore, when determining the number of units for each assessable service, I will have to consider each item separately in conjunction with the specific circumstances of this case and the previously identified factors (Bujnowski v. The Queen, 2010 FCA 49 at para. 9; League for Human Rights of B’Nai Brith Canada v. Canada, 2012 FCA 61 at para. 15).

B. The bill of costs is substantially unopposed

[8] Apart from the issue of the level of costs, which was dealt with earlier, the appellants’ written representations do not contain an observation specifically addressing the respondents’ various claims in their bill of costs. Accordingly, the said bill of costs is considered substantially unopposed.

In terms of the standard that an assessment officer must apply in assessing an unopposed bill of costs, the assessment officer in Dahl v. Canada, 2007 FC 192 [Dahl] stated the following: [2] Effectively, the absence of any relevant representations by the Plaintiff, which could assist me in identifying issues and making a decision, leaves the bill of costs unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant’s advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, i.e., those outside the authority of the judgment and the Tariff. [...]

In addition to Dahl, in Merck and Co. v. Apotex Inc., 2006 FC 631 [Merck], the Court concluded as follows: [3] In general a successful party is entitled to recover costs to be assessed on a Column III basis together with disbursements that are reasonable and necessary for the conduct of the proceeding. [...]

[9] In light of the principles set out in Dahl and Merck, and as a result of the Court’s decision, I will authorize only the costs claimed by the respondents to which they are entitled and which are within the range of units set out in column III of the table to Tariff B, and all disbursements deemed reasonable and necessary to the proceeding.

II. Assessable services

[10] The respondents are claiming $5,437.50 for assessable services.

A. Item 18 – Preparation of appeal book

[11] The respondents are claiming one unit under Item 18 for the preparation of the appeal book. Since both parties have a duty to ensure that the appeal book is prepared, this claim is allowed (Rule 343(1); Actra Fraternal Benefit Society v. Canada, [2000] F.C.J. No. 1214 at para. 11).

B. Item 19 – Memorandum of fact and law

[12] The respondents are claiming seven units under Item 19 for the preparation of the memorandum of fact and law. In column III of the table to Tariff B, the number of units that can be allowed ranges from four to seven. I have reviewed the said procedure while considering the factors in Rule 400(3), and I note that this is not a highly complex case that would warrant allowing the highest number of units in column III. However, the issues were of moderate importance and complexity, a significant amount of work was done to prepare the memorandum of fact and law of the respondents, and the respondents were successful (Rules 400(3)(a), (c) and (g)). I have therefore determined that the above facts support the allowance of six units under Item 19.

C. Item 20 – Requisition for hearing

[13] The respondents are claiming one unit for preparing and filing a requisition for hearing. After reviewing the record, I note that the requisition for hearing made under Rule 347 was prepared and filed by the appellants. In their written representations, however, the respondents indicate that they [translation] “filed a requisition for hearing”, which makes it possible to infer that they were involved in preparing and filing the requisition for hearing (Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), 2002 FCA 515 at para. 12). The unit claimed under Item 20 is therefore allowed.

D. Item 22 – Counsel fee on hearing of appeal: (a) to first counsel, per hour

[14] A total of 17.25 units are claimed under Item 22(a), which is equivalent to 5.75 hours multiplied by three units for the respondents’ lead counsel’s attendance in Court during the May 19, 2021, hearing. Since the hearing summary filed in the record indicates that the hearing lasted 5 hours and 42 minutes, the claim is reasonable and is allowed as claimed.

E. Item 25 – Services after judgment not otherwise specified

[15] In their bill of costs, the respondents are claiming one unit for services after judgment. Notwithstanding the absence of evidence, Item 25 is routinely allowed because it is customary for counsel to have reviewed the judgment and explained associated implications to the client (Halford v. Seed Hawk Inc., 2006 FC 422 at para. 131). As a result, I find that the respondents are entitled to one unit as claimed.

F. Item 26 – Assessment of costs

[16] Under Item 26, that is, for services performed to prepare this assessment of costs, the respondents are claiming six units. Although this is a substantially unopposed assessment, the appellants nevertheless submitted arguments regarding the determination of the level of costs applicable and continued the debate on the legitimacy of their grounds of appeal. The respondents filed a reply in which they described this approach as a [translation] “regrettable trials of motives” and noted the fact that [translation] “even while, for the purposes hereof, it is submitted that the appellants raised frivolous, useless, inappropriate and vexatious grounds in the proceedings concerned, they are attempting to defend themselves here by raising more irrelevant and supererogatory considerations … ” (Reply of the respondents at paras. 14 and 15).

[17] After having reviewed the respective written representations of the parties, I am of the opinion that the appellants’ conduct at the stage of the assessment of costs certainly made the respondents’ task more onerous. The appellants continued to argue their grounds of appeal even though the debate was closed, and the Court had already ruled on these issues. In addition, the respondents had to reply to the appellants’ various flawed arguments formulated in their written representations when the appellants had not submitted any real objection. Thus, considering the amount of work the respondents had to do (Rule 400(3)(g)), the appellants’ conduct, which unnecessarily lengthened the duration of the proceeding (Rule 400(3)(i)) and the appellants’ taking improper, vexatious or unnecessary steps (Rule 400(3)(k)(i)), I am of the opinion that allowing five units is warranted in this case.

G. Item 27 – Such other services as may be allowed by the assessment officer or ordered by the Court

[18] The respondents are claiming three units under Item 27 for [translation] “services such as numerous exchanges of correspondence and applications for an extension of time […]” (Written representations of the respondents at para. 3). In addition, the respondents listed in their bill of costs [translation] “Other services; Letter of motions and objection following the appellants’ numerous applications; Application for an extension of time”. The bill of costs further states that [translation] “[t]his correspondence required the respondents to perform additional drafting and research” (Written representations of the respondents at para. 17).

[19] Item 27 deals with professional services rendered by counsel that are not already provided for in Items 1 to 26 of Tariff B. After examining the record, I am of the opinion that certain interventions made by the respondents in the context of this file should be assessed under Item 27. I also note that on March 17, 2021, a consent to the extension of time for filing the appellants’ memorandum was filed and that on May 10, 2021, the respondents emailed the appellants regarding the late filing of the joint book of authorities. Considering the factors set out in Rule 400(3), specifically: (g) the amount of work and (i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding, I find that the services provided by the respondents were necessary for the conduct of the proceeding, and three units should be allowed.

III. Disbursements

A. Photocopies

[20] The respondents are claiming $250 for printing photocopies of the appeal book. The respondents’ bill of costs shows that there were 2,500 pages printed at a cost of 10 cents each. Upon reviewing the record, I note that this claim reflects the number of copies made by the respondents in this case. The amount of $250 for photocopies is allowed as claimed.

IV. Conclusion

[21] The respondents’ bill of costs is assessed and allowed in the amount of $5,644.38. A certificate of assessment will be issued for this amount.

“Audrey Blanchet”

Certified true translation

Melissa Paquette, Jurilinguist

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: