Date: 20040610
Docket: A-266-01
Citation: 2004 FCA 228
BETWEEN:
482733 ONTARIO INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to a judgment dated January 27, 2003, by the Court of Appeal dismissing the application for judicial review with costs. The judicial review was from a decision of the Tax Court of Canada dated April 5, 2001 dismissing the Applicant's claim for input tax credits (ITCs) and the Applicant's alternative claim for a rebate of goods and services tax (GST) allegedly paid in error.
[2] After receiving a request for an assessment appointment, a letter was issued setting a timetable for written submissions. Bills of costs and associated written material were submitted
by the Respondent and filed. The Applicant filed opposing documentation and the Respondent filed rebuttal submissions.
The Respondent's Position
[3] The Respondent submits the Bill of Costs has been prepared in accordance with the Federal Court Rules and specifically refers to Rule 407:
Assessment according to Tariff B
407.Unless the Court orders otherwise, party-and party costs shall be assessed in accordance with column III of the table to Tariff B.
In addition, the disbursements submitted are supported by exhibits attached to the Respondent's affidavit.
The Applicant's Position
[4] The Applicant argues that the Bill of Costs submitted is "...overstated and overvalued....". He specifically takes issue with the assessable service Item 14(a), Item 25 and Item 26. In addition, the Applicant argues the photocopying charges appear to be excessive and a more favourable rate from these outside services should have been given to the Respondent to be indirectly passed on to the Applicant. The Applicant further submits that the Respondent when serving documents should have used mail or called the Applicant to pick the items up rather than incur courier charges. Finally, the Applicant refers to the process of preparing this Bill of Costs as a waste of time since the Respondent was aware the Applicant is no longer in business and is unable to pay the amounts requested.
Assessment
[5] I have read all the materials in the record and have summarized only those issues
which are relevant for disposition of this assessment.
[6] As mentioned above, the Applicant argues the Bill of Costs appears excessive. I do not agree. I note the Respondent has only requested the lower end of column III of Tariff B for Item 2 (preparation and filing of Respondent's record) and the lowest end of column III Tariff B for Item 14(a) (counsel per hour in Court) and Item 26 (assessment of costs). In addition, it is worthwhile to note the Respondent did not claim all of the possible fee items. The above assessable service amounts are reasonable and will be allowed as 5 units ($550.00), 2 units ($220.00) and 2 units ($220.00) respectively.
[7] The Applicant's opposing submissions specifically refer to the lack of explanation for the 2 units claimed for Item 25 (services after judgment not otherwise specified). I rely on the reasons of Taxing Officer Charles E. Stinson in Grace M. Carlile v. Her Majesty the Queen, [1997], 97 D.T.C. 5287.
...Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. ...
Further, Phipson on Evidence, Fourteenth Edition (London: Sweet and Maxwell, 1990) at page 78, paragraph 4-38 states that the " standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars on the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donation of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd ...... Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred....
Common sense dictates that the Respondent must have had some interaction with its client after the hearing. In addition, the Respondent's supporting affidavit indicates two letters were sent to the Applicant on April 10th and May 22nd, 2003 respectively, requesting payment. Taking into account the above reasons, I allow the 2 units ($220.00) for this assessable service.
[8] The Applicant states that the photocopying bill amounts are excessive. I rely on the case of Moloney v. Canada, [1989], 1 C.T.C. 213, wherein the Court has adopted the practice of accepting the charges of $.25 a sheet. It is reasonable to reduce two of the invoices to $16.96 and $44.56 which includes the applicable taxes since the amounts charged per page were in excess of the accepted standard. The other photocopying disbursements of $59.71 and $1,013.20 are well below this practice of a $0.25 charge on a per page basis and will be allowed in their entirety.
[9] With regards to the Applicant's concerns of the unnecessary use of process servers by the Respondent, the practice and use of these companies is well established. I also note the use of couriers for service of documents is allowed under Rule 140 of the Federal Court Rules.
Rule 140. (1)Non-personal service - Service on a party of a document that is not required to be personally served may be effected by personal service or
(a) by leaving the document at the party's address for service;
(b) by mailing the document to the party's address for service;
(c) by delivering the document by courier to the party's address for service;
(d) by transmitting the document by fax
(i) where the party has a solicitor of record, to the solicitor of record, and
(ii) where the party has no solicitor of record, to the party; or
(e) in such other manner as the Court may on motion order.
For these reasons, I allow the disbursements for use of process servers in the amounts of $48.15 and $63.05.
[10] The Applicant indicates that he is unable to pay this bill. I turn to the reasons of Taxing Officer Bonin in Chaperon v. Canada, [1992] , F.C.J. No. 167.
Mr. Chaperon asked us also to consider his inability to pay, emphasizing the fact that the federal government has always protected the most disadvantaged. Mr. Chaperon has had an opportunity to seek the services of Legal Aid or of lawyers who accept legal aid mandates: it is not for the Federal Court to question the parties as to whether they have availed themselves of these services or whether they were refused legal aid. While the Court is accessible, it is not free of charge, and at this point there is no way of being exempted from paying costs awarded by the Court.
For these reasons, the Applicant's inability to pay has been given no weight in assessing these costs.
[11] The Respondent's Bill of Costs in A-266-01 is assessed and allowed in the amount of $2,718.27 which includes assessable services and disbursements. A certificate is issued in this Court of Appeal proceeding for $2,718.27.
"Paul G. C. Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
June 10, 2004
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-266-01
STYLE OF CAUSE: 482733 ONTARIO INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON
DATED: JUNE 10, 2004
SOLICITORS OF RECORD:
Harold Winick FOR THE APPLICANT,
Toronto, Ontario ON HIS OWN BEHALF
Carol Calabrese FOR THE RESPONDENT
Deputy Attorney General of Canada
FEDERAL COURT OF APPEAL
Date: 20040610
Docket: A-266-01
BETWEEN:
482733 ONTARIO INC.
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS - REASONS