BETWEEN:
and
HER SERVANT THE SOLICITOR GENERAL OF CANADA,
AND HER AGENTS THE NATIONAL PAROLE BOARD AND
THE CORRECTIONAL SERVICE OF CANADA
ASSESSMENT OF COSTS - REASONS
Assessment Officer
[1] These original signed reasons are filed in this court file (the A-29-05 matter) and a copy is filed today in each of Federal Court files T-1232-02 (the T-1232-02 matter) and T-552-05 (the T-552-05 matter). They apply in each matter accordingly. The A-29-05 matter and the T-1232-02 matter addressed facts and issues distinct from those in the T-552-05 matter, but Mr. Latham's submissions, for convenience, applied in part to all three matters or, specifically, to a given matter in its circumstances. I issued timetables for written disposition of the assessment of the Respondents' bill of costs presented in each matter. As each bill of costs claimed the minimum unit value ($120.00 per unit) in the available range for each counsel fee item listed, and no disbursements, I have only summarized the parties' respective submissions on entitlement to given counsel fee items. As well, submissions resulting in the withdrawal of given items from initial versions of the bills of costs are not summarized.
[2] The T-1232-02 matter, an application for judicial review of a decision (July 2002) of the Appeal Division of the National Parole Board (the Board) affirming the Board's decision that Mr. Latham (the Appellant or the Applicant as the context requires) should not receive any form of conditional release because he posed an undue risk to society, was dismissed with costs. The A-29-05 matter, an appeal of the judgment in the T-1232-02 matter, was dismissed for delay by order silent on costs. The T-552-05 matter, an application for judicial review of a decision (February 2005) of the Appeal Division of the Board affirming the Board's decision denying parole for the Applicant, was dismissed with costs.
I. The Respondents' Position
[3] Relative to the T-1232-02 matter and the A-29-05 matter, the Respondents argued further to Solosky v. The Queen, [1977] 1 F.C. 663 (T.D.); affirmed without comment on this point [1978] 2 F.C. 632 (C.A.); affirmed without comment [1980] 1 S.C.R. 821, that the Appellant's position on his capacity to pay costs is irrelevant in an assessment of costs. The Respondents argued further to Mennes v. Canada (May 4, 1999), Doc. T-2019-98 (Fed. Assess. Off.) that, in the absence of a stay of proceeding, a pending appeal of a judgment for costs does not preclude assessment of said costs.
[4] Relative to the order dated February 27, 2003 (silent on costs and denying further production) in the T-1232-02 matter, the Respondents noted the Court's direction dated October 24, 2003, that the judge presiding over the judicial review hearing would settle the Applicant's concerns for potential appeal of said order. The presiding judge did not mention said order, but did dismiss the application for judicial review with costs, thereby entitling the Respondents to costs for said order dated February 27, 2003. The Respondents conceded that the order dated May 9, 2005, in the A-29-05 matter dismissing the Appellant's motion for consolidation of appeals was silent on costs, but argued further to Rule 400(3)(a) (result) that the associated costs should be assessable against the party unsuccessful in both the motion and the appeal. The February 15, 2006 order denying leave to appeal to the Supreme Court of Canada clearly awarded costs to the Respondents for said motion. The Respondents are entitled to the minimum units claimed in accordance with the Tariff for the other counsel fee items, including an item 26 (assessment of costs) fee in each bill of costs.
[5] Relative to the T-552-05 matter, the Respondents argued that the use of a teleconference did not preclude the actual work associated with items 13 (preparation for hearing of the judicial review) and 14(a) (oral submissions at the hearing of the judicial review). Given that costs of the judicial review were awarded to the Respondents, the item 26 claim, at the minimum 2 units, for assessment of said costs is proper. The process of assessment and collection of costs in the T-552-05 matter would not hinder the Applicant from bringing future actions or judicial reviews. It is apparent from the Applicant's capacity to obtain funding to bring actions that he, in fact, does have sufficient funds to pay costs.
II. The Applicant's/Appellant's Position
[6] Relative to the T-1232-02 matter, the Applicant asserted that the Court directed that the February 27, 2003 order would be reconsidered by the judge presiding over the hearing of the judicial review, yet the Respondents still claim for item 5. The claim of 2 units for item 8 (interrogatories) should be cut to 1 unit because the associated work was minimal. Relative to the A-29-05 matter, the Appellant argued that the item 21(a) claim for preparation of the response to the Appellant's motion addressing consolidation of appeals should be disallowed because, although the motion was dismissed, no costs were awarded. The Respondents' item 21(a) claim for preparation of the response to the Appellant's motion addressing leave to appeal to the Supreme Court of Canada should be disallowed because the Federal Court of Appeal erred in awarding costs against the Appellant in the face of existing principles and practice holding that costs should not be awarded against inmates forced to represent themselves and asserting process concerning the legality of confinement. Relative to the T-552-05 matter, the Applicant argued that, if anything is to be allowed, it should be restricted to item 2 (preparation of the Respondents' record for the judicial review) thereby precluding item 13 (preparation for the judicial review) and item 14(a) (appearance at the judicial review) claims because the judicial review proceeded by teleconference.
[7] Relative to all three matters, the Applicant/Appellant asserted the record indicates that he is indigent. Interest on any costs should be denied. Collection of costs should not hinder his future access to court process and should be frozen until six months after he is released on full parole. These assessments of costs are premature because he is currently attempting to obtain legal representation for appeals to the Supreme Court of Canada. Nothing should be allowed for item 26 (assessment of costs) because the Respondents did not give prior notice that they would attempt to collect costs. That is, the assessments were unnecessary. If anything is allowed, it should be restricted to a single item 26 fee because a single submission was sufficient to address these three matters.
III. Assessment
[8] The existence of outstanding appeals does not prevent the Respondents from proceeding with these assessments of costs: see Culhane v. ATP Aero Training Products Inc., [2004] F.C.J. No. 1810 (A.O.) at para. [6]. In Clarke v. Canada (Attorney General), [2005] F.C.J. No. 814 (A.O.), the Applicant (an inmate), in arguing before me that his limited resources coupled with the potential amount of assessed costs would interfere with his rehabilitation, correctly conceded in my view that both capacity to pay and likelihood of satisfaction of the assessed costs are irrelevant in the determination of issues of an assessment of costs. That is, I cannot interfere with the exercise of the Court's Rule 400(1) discretion which established the Respondents' right for recovery here of assessed costs from the Applicant/Appellant. I do not think that financial hardship falls within the ambit of "any other matter" in Rule 400(3)(o) as a factor relevant and applicable by an assessment officer, further to Rule 409, to minimize assessed litigation costs. Self-represented litigants and litigants represented by counsel receive the same treatment relative to the provisions for litigation costs: see Scheuneman v. Canada (Human Resources Development), [2006] F.C.J. No. 1278 (A.O.). The Courts here made their findings concerning entitlements to costs: I have no jurisdiction to interfere.
[9] For the T-1232-02 matter, the Applicant asserted that the Court had directed that the judge presiding over the judicial review would reconsider the February 27, 2003 order (motion for production). In fact, the Court did not so direct and instead gave directions relative to a potential appeal. This does not assist in the disposition of assessment issues; but given that the Applicant objects to an item 5 claim further to an order silent on costs, I will disallow it further to my conclusions in 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]. As for the May 9, 2005 order silent on costs in the A-29-05 matter, Rule 409 permits me to apply Rule 400(3)(a) (result), but that does not empower me to assess costs if the Court has not first visibly exercised its Rule 400(1) jurisdiction to award costs to the Respondents. I also disallow this item 5 claim.
[10] There were issues particular to each bill of costs. Assessment of costs must precede execution for satisfaction of costs. I think it appropriate in these circumstances to allow the minimum item 26 claim in each matter. In all other respects, the fee claims are in order and are allowed. The amended bill of costs in the T-1232-02 matter, presented at $2,280.00, is assessed and allowed at $1,920.00. The bill of costs in the A-29-05 matter, presented at $720.00, is assessed and allowed at $480.00. The amended bill of costs in the T-552-05 matter is assessed and allowed as presented at $1,560.00.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-29-05
STYLE OF CAUSE: BRYAN R. LATHAM V. HMQ et al.
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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Bryan R. Latham |
(self-represented)
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Don Klaassen & Chris Bernier Department of Justice |
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SOLICITORS OF RECORD:
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n/a
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John H. Sims, Q.C. Deputy Attorney General of Canada
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