Date: 19991008
Docket: IMM-3366-96
BETWEEN:
CHING SHIN HENRY WONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ASSESSMENT OF COSTS - REASONS
G.M. Smith,
Assessment Officer
[1] This assessment stems from a motion filed by the Applicant seeking clarification of the Court's Order in this matter dated February 27, 1998. On November 27, 1998 the Court issued further instructions as result of that motion and awarded costs of the application to the Applicant on a solicitor-and-client basis.
[2] At the assessment hearing, counsel for the Respondent referred to the factors listed under Rule 400(3) in suggesting that the fees claimed by the Applicant for preparation of his motion should be reduced by half. Briefly stated, it was argued by Respondent's counsel that the motion resulted in very limited success (Rule 400(3)(a)), the issues were neither complex nor especially important from a legal point of view (Rule 400(3)(c)) and the amount of work performed by Applicant's counsel, proportionate to the limited area of success of the motion, was not especially great.
[3] The Respondent also opposed fees for the appearance of two counsel to represent the Applicant at the judicial review hearing. Given the circumstances and nature of the case, attendance by single counsel, she argued, would have sufficed. The Respondent should not now be forced to reimburse the Applicant for his own choice in supplementing with second counsel.
[4] In reply, counsel for the Applicant argued that, had the Respondent been forthright in revealing the Minister's position in advance of the motion for clarification, the amount of preparation time could have been reduced. However, as the events occurred the Applicant was forced to prepare for the larger range of possible issues on the motion. All of the costs relevant to that work should therefore now be recoverable.
[5] As to the issues of complexity and importance, Applicant's counsel argued that the motion for clarification of judgment was the first of its nature that they were aware. Counsel had no precedent to follow and the job of preparing for every possible scenario and challenge was both reasonable and necessary. Although one could take the view in a light after the event has actually occurred that less preparation might have achieved the same success, such a gamble and hindsight would neither have been available nor prudent at the time of preparing for the motion. And in any event, counsel noted, the Court did not completely ignore the other issues raised by the motion and the hearing Judge gave no instructions to suggest her award of solicitor-and-client costs should be limited.
[6] After considering counsel's arguments and reviewing the time docket summary produced at the assessment, I am convinced that the claim for preparation time is neither exorbitant nor unreasonable in the circumstances. The success of the motion may very well have been limited. On the other hand, counsel's time docket shows that not all of their preparation time is claimed in the Applicant's Bill. Moreover, she argued, that most valuable asset of hindsight cannot completely negate the need for full and competent preparation to argue a motion.
[7] As for the claim for two counsel at the hearing, I agree with the Respondent that this item should be reduced. I have no doubt the Applicant was well served by his legal representatives at the hearing, however appearance of either one of those counsel, both very experienced and learned in their profession, would certainly have sufficed. In the circumstances of this particular case, the costs of second counsel at the hearing is not an expense which, in my view, the Respondent should be held responsible.
[8] The costs relating to the assessment itself and the disbursements were all agreed to by the Respondent. They are allowed as claimed. In the result, the Applicant's Bill of Costs will be assessed and allowed in the amounts of $5,550.00 for fees, $388.50 for G.S.T. and $159.00 for disbursements. A Certificate of Assessment will issue for the total amount of $6,097.50.
(signed: Gregory M. Smith)
Gregory M. Smith
Assessment Officer
Ottawa, Ontario
October 8, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: IMM-3366-96
CHING SHIN HENRY WONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF ASSESSMENT: October 4, 1999
PLACE OF ASSESSMENT: Toronto, Ontario
REASONS BY G.M. SMITH, ASSESSMENT OFFICER
DATE OF REASONS: October 8, 1999
APPEARANCES:
Mary Lam for the Applicant
Marie-Louise Wcislo for the Respondent
SOLICITORS OF RECORD:
Cecil L. Rotenberg, Q.C.
Barristers & Solicitors
Toronto, Ontario for the Applicant
Morris A. Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario for the Respondent