Date: 20010319
Docket: A-253-99
Neutral citation: 2001 FCA 51
BETWEEN:
SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE ATTORNEY GENERAL OF CANADA,
THE CANADIAN HUMAN RIGHTS COMMISSION,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION,
SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS
and LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH
Appellants
- and -
ERNST ZÜNDEL and
CANADIAN ASSOCIATION FOR FREE EXPRESSION INC.
ASSESSMENT OF COSTS - REASONS
Assessment Officer
[1] This is an in writing assessment of the Bill of Costs of Appellant, Simon Wiesenthal Centre, pursuant to the Judgment of the Court dated the 18th day of May, 2000.
Preliminary Issue
[2] As in the assessment of costs in the proceeding between the present parties, bearing court file number T-190-99, the Respondent, Ernst Zündel (Respondent) takes the position that this assessment ought not to proceed until all appeals are exhausted. Counsel for the Respondent sets out her position as follows:
It is our position that costs should not be assessed until all appeals are exhausted in these cases.
The application for leave to appeal to the Supreme Court of Canada in A-253-99 should be coming down shortly. If it is dismissed with costs, then the assessment can deal with all matters in one, final decision. If the application is allowed, then it raises the serious possibility that the order as to costs could be reversed or varied. With respect to A-190-99, our position is the same. We rely on the decision of Smith, Assessment Officer, in Zündel v. Canada (Canadian Human Rights Commission), [1999] F.C.J. No. 1239, which held that the assessment should not take place until all appeals had been resolved.
[3] Counsel for Appellant makes no submissions in response and neither was there a withdrawal of the request for assessment. This, I believe, leaves it open for me to infer that it is the assessing party's intention to proceed with the assessment of its Bill of Costs as originally requested.
[4] Consistent with my decision in file T-190-99 and in the case of Suresh v. The Minister of Citizenship and Immigration, Court file number IMM-1390-96, I rejected the Respondent's preliminary objection.
Assessment of Costs
[5] In assessing the Bill of Costs as submitted, I have considered the factors set out in Rule 400(3) as well as the Respondents' written representations on complexity and work performed. I am of the view that, the amounts claimed under Tariff items 19, 22 and 26 are somewhat excessive and will be assessed as follows:
Item 19: Seven (7) units claimed five (5) units allowed.
Item 22: Six (6) hours multiplied by three (3) units for a total of eighteen (18) units claimed. Two (2) hours multiplied by three (3) units for a total of six (6) units allowed.
Item 26: Three (3) units claimed, two (2) units allowed.
[6] The units claimed under Tariff items 17 and 18 will be allowed as sought. The assessed total for fees is therefore fifteen units or $1,500.00
Disbursements
[7] Respondents' submissions on the items claimed as disbursements are as follows:
(iv) Disbursements:
It is submitted that extremely excessive costs have been claimed for photocopying in this appeal.
The appellant has claimed $948.75 for duplicating the Appeal Book and $62.50 for duplicating the Memorandum of Fact and Law. It has further claimed $3,394.21 for duplicating the Appellant's Joint Brief of Authorities.
The Appeal Book was 310 pages long.
The appellants filed an "Appellant's Joint Brief of Authorities" of five volumes including all cases to be referred to in the three appeals of A-253-99, A-258-99 and A-269-99. There appears to be no breakdown of costs among these three appeals.
It is submitted that these charges are excessive and unreasonable and that parties to proceedings should not be burdened with these type of high charges for photocopying.
The appellant submits further that photocopying charges should be reduced to account for the fact that the books of authorities included many cases pertaining to two other appeals.
It is submitted that $1,500.00 is reasonable in the circumstances.
[8] The Appellant did not make any specific representations to counter the Respondents' submissions, but did file the affidavit of Deborah Angus in support of this assessment.
[9] Having reviewed the said affidavit of Deborah Angus and the exhibits attached thereto, I am of the view that with the exception of the below quoted items, all the other disbursements are properly claimed and proven and will be allowed in full.
Exceptions:
- $948.75, photocopying charges for duplicating Appeal Book.
- $3,394.21, paid to Commonwealth Imaging for duplicating Appellant's Joint Brief of Authorities.
- $108.85, paid to Federal Express and Quick Messenger Services Courier for service of Appellant's Joint Brief of Authorities.
- $45.00, paid to Donoldson Law Clerk Services to file Appellant's Brief of Authorities.
[10] With regards to the $948.75 amount for photocopying of the Appeal Book. Exhibit "N" to the affidavit of Deborah Angus, attaches an excerpt from the "Bennett Jones' Pro Forma Report" showing the Cost of the said photocopying. Further, the affidavit deposes that the Appeal Book was duplicated fifteen (15) times. Ten (10) copies required for the parties and five (5) copies for the Court.
[11] The Respondents' submissions indicate that the Appeal Book consisted of three hundred and ten (310) pages. Applying simple mathematics: 310 X 15 = 4650 pages. Allowing the accepted rate for photocopies of 0.25 cents: 4650. X 0.25 = $1,162.50. The amount of $948.75 will be allowed as claimed.
[12] As noted above, the Respondents' position with regards to the $3,394.21 paid to Commonwealth Imaging, is that the Brief of Authorities consisted of five volumes including cases referred to in two other related appeals, A-258-99 and A-269-99. Further, as noted in the Respondents' submissions, there appears to be no breakdown of this disbursement amongst the three related appeals. While I am of the view that the duplication of the Appellant's Brief of Authorities was a necessary disbursement, I am also of the view that the total amount of this disbursement should not be borne in this proceeding. In the absence of submissions to the contrary, I must assume that the copies of cases reproduced in the Appellant's brief of Authorities, had equal applicability amongst the three related cases. Consequently, I will allow one third of the $3,394.21 to be disbursed on this appeal.
[13] Consistent with the foregoing, I will allow one third of the $108.85 claimed for service of the Brief of Authorities and one third of the $45.00 amount claimed for service of the Brief of Authorities.
[14] Consequently, the total amount allowed for all the disbursements will be $2,608.29.
[15] The Bill of Costs of the Appellant, Simon Wiesenthal Centre is assessed at $1,500.00 for fees, $2,608.29 for disbursement, and $287.58 for GST for a grand total of $4,395.87.
[16] A certificate of Assessment will issue accordingly.
"Peter Pace"
Assessment Officer
Toronto, Ontario
March 19, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-253-99
STYLE OF CAUSE: SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE ATTORNEY GENERAL OF CANADA, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS and LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH
Appellants
- and -
ERNST ZÜNDEL and
CANADIAN ASSOCIATION FOR FREE
EXPRESSION INC.
Respondents
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PETER PACE
ASSESSMENT OFFICER
DATED: MONDAY, MARCH 19, 2001
SOLICITORS OF RECORD: Bennett Jones
Barristers & Solicitors
3400-1 First Canadian Place
P.O. Box 130, Stn. 1st Can. Pl.
Toronto, Ontario
M5X 1A4
For the Appellant Simon Wiesenthal Centre
Douglas H. Christie
Barrister & Solicitor
810 Courtney Street
Victoria, British Columbia
V8W 1C4
Barbara Kulaszka
Barrister & Solicitor
41 Kingsley Avenue, P.O. Box 1635
Brighton, Ontario
K0K 1H0
For the Respondent Ernst Zündel
FEDERAL COURT OF APPEAL
Date: 20010319
Docket: A-253-99
BETWEEN:
SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE ATTORNEY GENERAL OF CANADA, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS and LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH
Appellants
- and -
ERNST ZÜNDEL and
CANADIAN ASSOCIATION FOR FREE
EXPRESSION INC.
Respondents
ASSESSMENT OF COSTS - REASONS