BETWEEN:
and
AND IMMIGRATION
ASSESSMENT OF COSTS - REASONS
Assessment Officer
[1] The Applicant sought leave to commence an application for judicial review and for judicial review of the continuing failure of the Case Processing Centre in Sydney, Nova Scotia, to issue a regular permanent resident card to him. The Court granted leave to commence and ordered that the judicial review was deemed to have been commenced. The Applicant subsequently discontinued. I issued a timetable for written disposition of the Respondent's bill of costs presented for assessment further to Rules 402 and 412. Counsel for the Respondent had requested disposition in writing, to which counsel for the Applicant objected on the basis that opposing counsel should appear personally before me to justify allegedly excessive claimed costs. In denying said objection, I drew the attention of counsel to the broad discretion conferred by Rule 408(1) on assessment officers concerning conduct of an assessment, which would include a direction for conduct thereof in writing, and noted that affidavit evidence to establish particulars of the Respondent's claimed costs would be required in any event.
[2] Further to Rules 409 and 400(3)(c) and (g) (importance/complexity and amount of work respectively), the Respondent argued that the time required (some 25.5 hours) for counsel to address the complexity of issues associated with the Applicant's unsuccessful motion to extend time to file a supporting affidavit justifies maximum counsel fee items 5 (preparation of motion) and 6 (appearance on the motion). In dismissing said motion with costs, the Court commented that the Applicant's conduct demonstrated a lack of respect for both the Court and the Respondent relative to an earlier order (dated September 12, 2005) providing inter alia for a schedule of steps to be taken. Further to Rule 400(3)(i) and (k)(i) (conduct tending to unnecessarily lengthen a proceeding and representing an improper step respectively), this warrants higher assessed costs. The costs awarded on this motion were ordinary party and party costs and not the Rule 404 costs payable by a solicitor personally. The Respondent argued that the deadline for cross-examinations was relevant in the Court's decision to dismiss the Applicant's motion and, effectively, that the Applicant was attempting to reargue the failed motion before me instead of addressing issues relevant to an assessment of costs. The bill of costs does not include costs wasted on the part of the Respondent due to the Applicant's failure to appear for his scheduled cross-examination. As well, an assessment of costs is not an appeal of a judge's decision deciding entitlement to costs, but rather a determination of the reasonableness of the claimed costs. Paragraph [8] of AstrazenecaABv. Novopharm Limited, [2004] F.C.J. No. 1196 (A.O.) holds that an assessment officer does not have Rule 400(1) jurisdiction to award costs, thereby precluding item 26 costs on this assessment for the Applicant.
[3] The Applicant argued that, notwithstanding the Court's dismissal of the motion, the relief sought was serious and crucial for his case. The award of costs does not entitle the Respondent to excessive costs. The Respondent should not infer that said award of costs was intended as punishment: the Court did not invoke Rule 404 providing for a solicitor to personally pay costs. The Applicant argued that the motion issues were straightforward, i.e. whether rebuttal evidence could come in and, if so, whether cross-examination schedules should be extended, requiring only 15 minutes of hearing time during which the Court did not hear from the Respondent. The Respondent's motion material was really an attempt to preclude the rebuttal evidence by forcing compliance with the existing cross-examination timetable, all irrelevant as factors in this assessment of costs. The 25.5 hours are irrelevant for justification of higher costs because this award of costs did not authorize indemnity on an hourly basis. By conceding minimal amounts for items 5 and 6 and by factoring out allowances for items 25 (services after judgment) and 26 (assessment of costs), the Applicant agreed to $500.00 plus reasonable disbursements relative to the motion. The Applicant requested $250.00 for his costs of the assessment given that it would have been precluded but for the Respondent's insistence on higher costs.
Assessment
[4] I concluded at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the tariff need not be used, as each item for the services of counsel is discrete and must be considered in its own circumstances. As well, broad distinctions may be required between an upper versus lower allowance from available ranges. Although I think that the item 5 preparation here would ordinarily warrant only a mid-range value of 5 units, I allow the maximum 7 units claimed in the circumstances of the Court's comments on conduct. I note as well the Court's comment that the motion likely would not have been necessary if the Applicant had adhered to the schedule for cross-examination. I allow only the mid-range value of 2 units (down from 3 units) for item 6.
[5] The award of costs here by a motion judge does not somehow preclude or limit the effect of Rules 402 and 412 for the costs associated with the broader continuum of this litigation, distinct from the particular span of the unsuccessful motion for leave to introduce rebuttal evidence. This excerpt from Rule 402, "... entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of costs had been given...", if given a broad reading, would permit an item 25 claim, which I allow here. I allow the item 26 fee claimed at 3 units (available range 2 - 6 units). The evidence adequately supports the claimed disbursements of $109.92 (photocopies, tabs and assembly of motion record) and $29.96 (courier to serve motion record), which I allow.
[6] The Respondent's bill of costs, presented at $1,639.88, is assessed and allowed at $1,579.88.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-878-05
STYLE OF CAUSE: TSZ CHEUNG WONG
- and -
THE MIISTER OF CITIZENSHIP
AND IMMIGRATION
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE
OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
WRITTEN REPRESENTATIONS BY:
| Ronald G. Pederson
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| Esta Resnick
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SOLICITORS OF RECORD:
| Wong Pederson Law Offices Vancouver, BC
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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