Date: 20010627
Docket: T-34-98
Neutral Citation: 2001 FCT 709
BETWEEN:
NOEL AYANGMA
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
Assessment Officer
[1] This party and party assessment of the defendant's costs took place on June 6, 2001 following the Order of the Court dated May 24, 2001. Mr. James Gunsvalden-Klaassen appeared on behalf of Her Majesty and Mr. Noel Ayangma on his own behalf. In deciding upon the number of units to allow I have considered the factors provided in Rule 400 (3), particularly at paragraphs (a), (b), (c) and (g).
[2] At the outset of the assessment counsel for the Crown withdrew the following items from the bill of costs:
- item # 4 4 units
- item # 5 (2 separate claims) 7 units each
- item # 24 (2 separate claims) 5 units each
[3] Item # 2. Defence counsel claims 7 units for the filing of the defence. The plaintiff suggests to reduce it to the minimum 4 units as well as to combine this item with the 3 units claimed under item 27 (request for particulars and review of same by the defendant).
[4] Mr. Gunsvalden-Klaassen replies that these two items are separate and further that the request for particulars was made because the statement of claim was not adequate; additional information was required to prepare the statement of defence.
[5] Having taken notice of the lengthy list of particulars provided by the plaintiff it appears to me that it was indeed essential for the defendant to obtain more specifics from the plaintiff to plead to the statement of claim.
[6] However, upon reflection I am not convinced that requests for particulars may be claimed under item 27 (for such other services as may be allowed by the assessment officer). In my view the makers of the Federal Court Rules 1998 would have made specific provisions to that effect as a separate service to be assessed in Part A of the Table in Tariff B.
[7] In the circumstances the claim for 3 units under item 27 will be refused and 7 units will be allowed for item 2 because of the additional work required by the defendant to answer the claim as originally filed on January 9, 1998.
[8] Seven units are sought for the preparation of two contested motions under item 5. Mr. Ayangma says these should be reduced to 4 units each. Mr. Gunsvalden-Klaassen points out that both motions were for summary judgment involving complex issues requiring supplemental research. Moreover, each motion was supported by an affidavit and written submissions. I am prepared to allow 6 units for each claim under item 5.
[9] Item 8. The defendant asks for 5 units for the preparation of a cross-examination. The plaintiff is of the view it should be disallowed on the ground that it was carried out by Mr. Parish who was not a lawyer from Justice Canada. Moreover, Mr. Ayangma maintains 2 units would be sufficient if this is an allowable item. In reply Mr. Gunsvalden-Klaassen indicates that Mr. Parish was acting as an agent of the Crown at that time and consequently it forms part of his costs. He adds that the necessary preparation of the witness was time consuming which justifies the higher unit level. In my opinion 4 units appear to be reasonable after having considered the position of each party.
[10] An amount of $1,200 is claimed for the attendance of counsel at the cross-examination of John Navaux (4 hours at the 3 unit level). Mr. Ayangma does not think it lasted four full hours. On June 7, 2001 Mr. Gunsvalden-Klaassen sent a letter to the Registry with a copy to the plaintiff advising it was Mr. Donovan's recollection that the cross-examination began either at 9:30 or 10:00 a.m. and concluded at 1:10 p.m. according to the notes on the transcript. The actual duration was either 3 hours and 10 minutes or 3 hours and 40 minutes. I will set it at 3.5 hours. Mr. Ayangma suggests it be reduced to the 1 unit value. Defence counsel maintains that 3 units are reasonable on the ground that Mr. Donovan is a senior lawyer. I will allow 2 units times 3.5 hours for the amount of $700.00.
[11] The defendant claims 5 units at item 13a for the preparation of the hearing. The plaintiff suggests 2 units. The assessment officer asked Mr. Ayangma for specific reasons to support his position. He said the minimum number of units seemed fair to him. In reply Mr. Gunsvalden-Klaassen argued that it is more difficult to prepare for oral arguments as compared with written submissions. I will allow 4 units.
[12] Mr. Ayangma objects to the allowance of 3 units for counsel fees at the hearing under item 14a. He says the minimum level of 2 units would be acceptable. On the other hand the defendant feel justified in requesting the maximum. In resolving this issue at the 2 unit level I am reminded of the widely accepted principle of partial indemnity. The hearing lasted five hours. I think the amount of $1,000.00 is fair compensation for these services.
[13] Finally the plaintiff is of the view that item 26 for counsel's appearance at the assessment of costs should be reduced to the minimum of 2 units. His opponent disagrees and suggests it ought to be much higher than the minimum; the assessment lasted one hour and ten minutes and involved the preparation, service and filing of the bill of costs and of an affidavit in support. In my opinion 4 units appear to be fair compensation.
[14] Various items of disbursements including travel expenses and photocopying charges are claimed and were not objected to. These will be allowed in the amount of $2,083.24.
[15] The defendant's bill of costs will be assessed and allowed in the total amount of $6,883.24.
Halifax, Nova Scotia
June 27, 2001 François Pilon
Assessment Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-34-98
BETWEEN: NOEL AYANGMA
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
PLACE AND DATE OF ASSESSMENT: Halifax, Nova Scotia, June 6, 2001
ASSESSMENT OF COSTS - REASONS BY François Pilon, Assessment Officer
DATE OF REASONS: June 27, 2001
APPEARANCES:
Noel Ayangma on his own behalf
James Gunsvalden-Klaassen for the defendant
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
of Canada (Ottawa) for the defendant