BETWEEN:
and
(HUMAN RESOURCES DEVELOPMENT CANADA)
ASSESSMENT OF COSTS – REASONS
Assessment Officer
[1] The Plaintiff, representing himself, brought an action for damages further to asserted errors relative to the administration of his disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP). The Federal Court dismissed his action, refused the Defendant’s request for solicitor-client costs and awarded party and party costs to the Defendant. The Federal Court of Appeal dismissed his appeal without costs. I issued a timetable for written disposition of the Defendant’s bill of costs in the Federal Court proceeding.
I. The Defendant’s Position
[2] The Defendant argued that the claimed total of $8,985.00 for costs is reasonable and fair given the Court’s finding that there was no legal basis for this action. The Defendant’s conduct does not warrant any reduction, further to Rules 409 and 400(3) factors, of the maximum amounts claimed for counsel fees. As well, the Court issued special directions for the conduct of the action to accommodate the Plaintiff’s disability, i.e. written interrogatories, evidence at trial in affidavit form, cross-examination questions for trial to be provided in advance and other provisions all warranting the maximum costs claimed. The Plaintiff’s unfocused approach in the conduct of his case, i.e. amended pleading and a lengthy reply, complicated the conduct of the Defendant’s case. None of this can be construed as penalizing the Plaintiff for his disability because each step taken was essential to establishing the Defendant’s position. The Plaintiff’s asserted lack of resources is irrelevant given that the award of costs already exists, the authorities have discounted capacity to pay as a factor, the record confirms several sources of income for the Plaintiff, costs are a consequence and obligation further to lack of success at trial, and the costs available further to the Tariff are low compared to the actual costs of litigation. The Defendant requested, further to Rule 408(3), a mid-range allowance of 3 units for item 26 given the work required to take this matter to an assessment of costs.
II. The Plaintiff’s Position
[3] The Plaintiff argued that awards of costs, and the Crown’s insistence on their payment, discriminate against the disabled and those with scant resources. The asserted justification of reducing burden on the courts simply reinforces the notion that access to the courts is restricted to the wealthy. The Plaintiff argued further to Rules 409 and 400(3)(c), (h) and (o) for a reduction of assessed costs because of the importance of this case for access and rights of the disabled to CPP benefits. The Plaintiff did follow the case management judge’s suggestion to drop certain Charter arguments. It was the Defendant who requested that he amend his pleading after the former reinstated, without notice, his disability benefits. If the Plaintiff’s conduct was unfocused as alleged, it was because he could not afford a lawyer and had to represent himself: he should not be penalized with extra costs. The Plaintiff’s disability as a factor affecting the length of the trial cannot justify increased costs for the Defendant because that result would conflict with well established principles of accommodation for the disabled. The judgment for costs did not restrict my discretion for setting the amount of costs actually payable, which should be a symbolic amount of $10.00 or $100.00.
III. Assessment
[4] The Federal Courts Act, sections 4 and 5.1(1) defining the Federal Court, and Rule 2 of the Federal Courts Rules defining an assessment officer, mean that the terms “Court” (as used in Rule 400) and “assessment officer” refer to separate and distinct entities. My jurisdiction to address the Plaintiff’s request to me either for a nominal award of costs or for denial of costs on humanitarian and constitutional grounds to avoid bringing the administration of justice into disrepute is therefore precluded because both said types of relief fall to the Court under Rule 400(1). The Court is functus relative to both types of relief having instead or already awarded party and party costs. That Rule 400(1) exercise of discretion triggered and restricted my jurisdiction to the parameters of Rule 407, i.e. Column III costs under Table B, which are not in the nature of nominal or no costs. Accordingly, I have not summarized the Plaintiff’s position concerning Rule 400(1) and (6)(a) and (d) (the Court’s discretion to award or refuse costs in respect of a particular issue or step and to award costs against a successful party respectively) as I am not the “Court” as that term is used in said Rule.
[5] The Court in Scheunenman v. Canada (Human Resources Development), [2003] F.C.J. No. 46 (F.C.T.D.) at para. [4], held that a “Plaintiff’s lack of legal training does not give him any additional rights and if he insists on representing himself, he must play by the same rules as everyone else.” The Court, in Kalevar v. Liberal Party of Canada, [2001] F.C.J. No. 1721 (F.C.T.D.), at paras. [22] – [24] inclusive, held similarly. I am not suggesting that the Plaintiff’s conduct equated to unbroken deviation from the Rules, but I do take from this jurisprudence the notion that the mere fact of being a self-represented litigant does not shield one from the consequences of conduct that might apply to a litigant represented by a solicitor of record.
[6] In Bow Valley Naturalists Society et al. v. Minister of Canadian Heritage et al., [2002] F.C.J. No. 1795 (A.O.), I considered the relevance of public interest for assessments of costs and concluded that the application of Rules 409 and 400(3) factors against the interest of successful litigants would require carefully considered discretion. That a judgment for costs does not accord the unsuccessful litigant special consideration relative to costs as a function of public interest does not preclude me from applying Rules 409 and 400(3)(h) (public interest). I do not think that, in the absence of proactive interventions by special interest groups, it can be presumed that statutory and regulatory schemes do not work in the public interest. The trial judge at para. [18], in disposing of the Plaintiff’s Charter matters, found that his “interests were primarily economic.” The appeal court, in considering and upholding the trial judge, noted the clear evidence in the record that the Plaintiff’s disability benefits were terminated because of an administrative error and then reinstated as a remedy under s. 66(4) of the CPP thereby precluding the jurisdiction in both Courts to compel the Defendant to reconsider said remedy. In these circumstances, I decline to apply a public interest factor to minimize the costs payable by the Plaintiff.
[7] I concluded at para. [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. Quite simply, much of the Plaintiff’s materials were irrelevant. His reliance on Rule 400(6), for relief clearly beyond my jurisdiction, indicates a lack of understanding of the process of assessment of costs, i.e. to translate an award of costs into a dollar amount. Effectively, the absence of any relevant representations by the Plaintiff, which could assist me in identifying issues and making a decision, leaves individual amounts by item in 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. I examined each item claimed in the bill of costs and the supporting materials within those parameters. Certain items warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs. I think that the Plaintiff’s mode of conduct, apart from his disability, was not so focused as to preclude unnecessary work for the Defendant. I will not interfere in the Defendant’s lawful and arguable claim to maximum amounts under the Tariff for counsel fees, other than to remove the item 14(b) claim for second counsel given that the Court did not visibly authorize, as its wording requires, for said cost.
[8] My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment of costs is “rough justice, in the sense of being compounded of much sensible approximation”, is that discretion may be applied to sort out a reasonable result for costs equitable for both sides. I think that my view is reinforced by the editorial comments (see: The Honourable James J. Carthy, W.A. Derry Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005-2006 (Aurora, Ont: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an assessment of costs is more of an art form than an application of rules and principles as a function of the general weight and feel of the file and issues, and of the judgment and experience of the assessment officer faced with the difficult task of balancing the effect of what could be several subjective and objective factors. In Almecon Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 (A.O.) at para. [31], I found certain comments in the evidence, although self-serving, nonetheless to be pragmatic and sensible concerning the reality of a myriad of essential disbursements for which the costs of proof might or would exceed their amount. However, that is not to suggest that litigants can get by without any evidence by simply relying on the discretion and experience of the assessment officer. The proof here is less than absolute. The paucity of evidence of the circumstances underlying each expenditure makes it difficult for the respondent on the assessment of costs and the assessment officer to satisfy themselves that each expenditure was incurred as a function of reasonable necessity. The less that evidence is available, the more that the assessing party is bound up in the assessment officer’s discretion, the exercise of which should be conservative, with a view to a sense of austerity which should pervade costs, to preclude prejudice to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd.
[9] The claimed disbursements include $15.00 for service of a notice of abandonment of motion. There likely are other charges within the claimed disbursement total of $1,911.00 associated with interlocutory orders silent on or not providing for costs. Further to Balisky v. Canada (Minister of Natural Resources), [2004] F.C.J. No. 536 (A.O.) at para. [6] and Aird v. Country Park Village Properties (Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at para. [10], I have no authority to assess costs in the face of an order silent on costs. I am not satisfied that the claimed disbursement total excludes costs associated with certain interlocutory events. The claimed charges for online computer research include work occurring after the trial. In a departure from ordinary practice, the Plaintiff was provided with an electronic and a hard copy of the trial transcript to aid in his preparation of certain post-hearing submissions. Although the parameters of said work were not provided, I find it prudent that the Defendant’s counsel prepared himself should a post-hearing reply become necessary. I allow a reduced total of $1,625.00 for disbursements. This assessment was not a stretch for the Defendant: I allow the minimum 2 units under item 26. The Defendant’s bill of costs, presented at $8,985.00, is assessed and allowed at $8,381.00.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-974-01
ERIC SCHEUNEMAN and HER MAJESTY
THE QUEEN (MINISTER OF HUMAN
RESOURCES DEVELOPMENT)
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: August 22, 2006
WRITTEN REPRESENTATIONS BY:
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Mr. Eric Scheuneman |
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Mr. R. Jeff Anderson
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SOLICITORS OF RECORD:
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n/a
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Mr. John H. Sims, Q.C. Department of Justice
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