BETWEEN:
LASCELLES MARSHALL and
BEVERLY MARSHALL
and
REASONS FOR ORDER
Charles E. Stinson
Assessment Officer
[1] The decision of the Court dated February 17, 2005, granting the Defendant’s motion for summary judgment by dismissing this action with costs, referred to several heads of relief advanced relative to the citizenship difficulties of the Plaintiff, Andrew Mark Marshall, and noted at para. [8] that “the plaintiffs’ objective in bringing the action is solely to obtain a declaration from the Court that Andrew Mark Marshall is a Canadian citizen in order to bar the defendant’s continuing efforts to deport him to his country of birth.” I issued a timetable for written disposition of the assessment of the Defendant’s bill of costs.
[2] Subsequently, the Plaintiffs’ counsel applied for and received leave to be removed as solicitor of record. The motion materials referred to the apparent existence of new counsel for the Plaintiffs, who has not to date come onto the record. I can find no record of such counsel in the Canadian Law List 2006 (Aurora, Ont.: Canada Law Book, 2006), which would not be current to today’s date. I issued additional directions, including these on April 24, 2006, to ensure that the Plaintiffs, essentially self-represented at this point, were aware of the parameters for disposition of the assessment of costs:
The Assessment Officer, Charles E. Stinson, has noted the efforts, disclosed in the record, by Roxanne Haniff-Darwent, currently counsel of record for the Plaintiffs, to forward to her clients the costs materials in chief served on her by counsel for the Defendant as required by the timetable for written disposition of the Defendant’s bill of costs. As well, he is aware of her outstanding Rule 125 motion for her removal as counsel of record and of information in the record indicating that the Plaintiff, Lascelles Marshall, has engaged new counsel. Although it is not clear from his reading of the record that such new counsel would represent the other two Plaintiffs, the Assessment Officer finds nothing in the pattern of activity to suggest otherwise. He finds that the Plaintiffs now have the costs materials in chief of the Defendant and that they have had sufficient time to find and instruct new counsel, if indeed that is their intent.
The Assessment Officer notes that the difficulties in getting the costs materials in chief of the Defendant into the hands of the Plaintiffs are attributable to the Plaintiffs themselves. Regardless, he directs that the time limit of April 7, 2006 for service and filing of any reply materials by the Plaintiffs on issues of the assessment of the Defendant’s bill of costs be extended to May 19, 2006. The time limit of April 28, 2006 for service and filing of any rebuttal materials on behalf of the Defendant is extended to June 12, 2006.
In issuing these directions, the Assessment Officer notes that the Plaintiffs may not like the result of this litigation, including the adverse award of costs, but that is a risk of litigation and the Plaintiffs cannot avoid their consequent obligations for costs, even in the face of an outstanding motion addressing the status of their solicitor of record. As well, to ensure that the Plaintiffs understand the parameters and focus of any reply materials, he notes for their convenience that an assessment of costs is not an opportunity for them to argue further the substantive merits of their case in an attempt to effectively vacate the award of litigation costs in the judgment disposing of their action. For greater clarity, the extension of time afforded the Plaintiffs by these directions addresses time to mount reply materials on issues of assessment of the Defendant’s bill of costs and not time to instruct counsel, new or otherwise, to challenge the judgment underlying the award of costs, the latter being beyond the jurisdiction of the Assessment Officer. The Plaintiffs should govern themselves accordingly.
Finally, further to the difficulties in getting materials to the Plaintiffs themselves, the Assessment Officer directed that the above directions be mailed to their last known address, but with a copy also mailed to their current solicitor of record. If the Court has not yet disposed of or has refused the Rule 125 application by the time counsel for the Defendant needs to serve any rebuttal materials, he should do so by serving them on the current solicitor of record for the Plaintiffs. She may then choose one of the two methods for service mentioned in the Court’s direction dated April 18, 2006 for service of the Rule 125 motion record on the Plaintiff and forthwith forward said rebuttal materials to her clients. Alternatively, should the Court grant the Rule 125 application by that time, counsel for the Defendant may choose one of two said methods of service on the Plaintiffs.
[3] On May 30, 2006, I issued these directions:
The Assessment Officer has noted your correspondence dated May 19, 2006 and the opposing comments from counsel for the Defendant in his letter dated May 24, 2006 and has issued the following comments and directions:
(i) There is nothing in the correspondence to indicate that the Plaintiffs have done anything to assist in moving forward the process of the assessment of the Defendant’s costs. That is not acceptable.
(ii) A judge of the Federal Court exercised his jurisdiction under Rule 400(1) to award costs to the Defendant. An assessment officer carrying out an assessment of costs under the Rules and Tariff has no jurisdiction to vacate or vary that result. Rather, the role of the assessment officer is essentially to arrive at a dollar value for said award of costs within the parameters of the Rules and Tariff.
(iii) Costs in litigation equal fees plus disbursements. Fees address work by the lawyer for the successful party (the Defendant in this case). The Rules and Tariff (see the TABLE immediately following Tariff B4(3)) permit claims for only certain counsel fee items at each stage of the litigation, and as well limit the amount claimed for each regardless of how much was actually paid to one’s lawyer for the particular service. An example in the Defendant’s bill of costs is the claim of $600.00 under item 2 for the Statement of Defence.
Disbursements are payments to non-lawyers for a service or work necessary to advance the litigation. An example in the Defendant’s bill of costs is the claim for $863.60 paid to Gabe’s Reporting Services Ltd. for the examination for discovery and transcript. Unlike the provision for counsel fees, there is no listing of possible disbursements. Rather, Tariff B simply provides generally for disbursements if they are shown to meet a threshold of reasonable necessity.
(iv) A bill of costs lists the claims for counsel fee items and disbursements and initiates the assessment of costs process.
(v) The assessment of costs process (which is the subject of this letter) provides an opportunity for the unsuccessful parties (the Plaintiffs in this case) liable to pay costs to challenge the suitability and/or amount of each item of costs claimed in a bill of costs. One way to do this is simply to address each item in the bill of costs, in turn by way of written submissions, by stating whether it should be allowed, disallowed or reduced, together with a brief rationale for each statement, i.e. the $600.00 claimed for the Statement of Defence should be reduced because said pleading was not complicated to prepare. It is difficult to accept that the Plaintiffs do not understand the implication of the amounts claimed in the bill of costs because many are for items of costs the same as or similar to services which their lawyer would have performed or incurred on their behalf all solely pursuant to discussions with and instructions from them at each stage of the litigation.
As for the second paragraph of your letter dated May 19, 2006 concerning potential information, including billings, from Roxanne Haniff-Darwent, it is open to each of you to swear an affidavit as to what information is sought and its relevance for your opposition to the bill of costs. You would then add to your written submissions a rationale laying out your analysis of how and why said information could affect the assessment of the Defendant’s bill of costs, including the grounds for delaying the assessment itself.
(vi) Accordingly, the deadline for the Plaintiffs to serve and file any reply materials is extended one final time to June 23, 2006. This extension is peremptory and the Plaintiffs should govern themselves accordingly. The Defendant may serve and file any rebuttal materials by July 14, 2006.
The Plaintiffs did not file reply materials addressing the bill of costs on an item by item basis.
I. Assessment
[4] Effectively, the absence of any relevant representations by the Plaintiffs, 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. 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 the bill of costs.
[5] 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. Accordingly, I disallow the items 5 and 6 claims (preparation and appearance respectively) relating to the motion to adjourn a pre-trial conference until after disposition of the Defendant’s motion for summary judgment. I have removed $150.00 as well being an estimate of associated disbursements.
[6] 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 item 24 of Column III of Tariff B for the time of counsel to travel to a venue) and “assessment officer” refer to separate and distinct entities. The Court did not exercise visible direction here for the travel fees of counsel to attend examinations for discovery and therefore I do not have the jurisdiction to allow anything for item 24. That restriction does not apply to the associated travel disbursements, for which I retain jurisdiction under Rule 405. That is, counsel fees and disbursements are distinct and discrete items of costs addressed by different portions of the Tariff, i.e. items 1 to 28 in the TABLE in Tariff B address counsel fees and Tariff B1 addresses disbursements. Accordingly, item 24 addresses counsel fees, but not disbursements. The discretion reserved to the Court to authorize assessment officers to address item 24, or even item 14(b) for second counsel, is exercised distinct from the discretion vested in me by Rule 405 and Tariff B1. There is no implied caveat impeding me from allowance of travel disbursements for counsel in the absence of an item 24 direction from the Court for fees for the time of counsel to travel to and from a hearing venue. The implications of indemnity for the time of counsel in transit are surely different than for charges (airlines, hotels and meals) for putting and maintaining one’s counsel at a hearing venue. I therefore disallow the item 24 claim in the bill of costs, but I allow the associated travel disbursements as presented ($1,922.23) which I find reasonable. In all other respects, the Defendant’s bill of costs is arguable as presented and is allowed. The Defendant’s bill of costs, presented at $13,964.90, is assessed and allowed at $12,494.90.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1519-02
ANDREW MARK MARSHALL et al.
- and –
HER MAJESTY THE QUEEN
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
WRITTEN REPRESENTATIONS BY:
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Andrew Mark Marshall, Lascelles Marshall and Beverly Marshall
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Rick Garvin |
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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