Date: 20040520
Docket: T-207-00
Citation: 2004 FC 742
BETWEEN:
EMILE MENNES
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT OFFICER
[1] As the Defendant's Bill of Costs relates to this file and A-752-00, I will deal with the costs of the appeal in these reasons and a copy of these reasons will be filed on A-752-00.
[2] On April 23, 2003, counsel for the Defendant filed a Bill of Costs to be assessed. After reviewing the file it appeared that this assessment was suitable for disposition by way of written submissions.
[3] On August 8, 2003, a letter was sent to the parties setting a timetable for filing written submissions. As the parties filed submissions in the time allowed, I will proceed with the assessment.
[4] In written submissions filed September 2, 2003, the Plaintiff, a self-represented litigant, submits the following:
I submit that the bills of costs in each case are PERVERSE in the circumstances and, as such, should properly be deferred.
I further submit that the one already granted in A-408-00 subjects the Court to being party to the perversion of justice which has occurred. The proper thing for you to do in view of the above cited proceedings pending on this issue of the seizure of my legal files and related materials and the Crown's subsequent bills of costs identified by you is to defer any further assessment by you pending the Court's determination on the issue of the seizure of my legal files and related materials and Department of Justice's subsequent actions after I was forced to file notices of discontinuance pending return of my legal files and related materials in order to immediately protect the proceedings affected. Any such deferral will not, I submit, prejudice the Crown further, in that its bills of cost were submitted back in A.D. 2002 and, almost two years later, were still not assessed. As such, deferring to the Court pending the Court's determination in the above proceedings now that this very issue of the Crown's bills of costs in these circumstances is before the Court would be proper, appropriate and just.
[5] Having regard to the Plaintiff's submissions that he was forced to file notices of discontinuance pending return of legal files and related materials, this is an issue for which I do not have jurisdiction. Likewise it is not within my jurisdiction to make a determination as to whether the Bills of Costs in each case are perverse in the circumstances. Therefore, the Plaintiff having made no submissions concerning the substantive issue of costs, I will proceed with the assessment based on the submissions of the Defendant and the documentation on record.
[6] Having determined that the Plaintiff's submissions were not germane to the issue before me I am reluctant to intervene, however, as the Plaintiff has responded to the Bill of Costs and considering my discretion, there are several areas of concern which will be addressed. Although an assessment officer must not step away from a neutral position to act as the Plaintiff's advocate, one cannot certify items which fall outside the authority of the orders rendered and the Tariff.
[7] In submissions filed August 22, 2003, counsel for the Defendant submits that the action was struck out on the grounds that a Parliamentary Committee is not a federal board or tribunal. The Defendant also submits that the Plaintiff discontinued this action. A review of the file revealed that the Plaintiff's action was dismissed by way of order dated May 24, 2000. Although the Plaintiff's file in Federal Court of Appeal (A-752-00) was discontinued, this fact is not germane to the issues relating to file T-207-00. Further, the order of this Court dated May 24, 2000 makes no mention of costs. The order reads:
This statement of claim herein is struck out.
[8] Therefore, having regard to the to the Defendant's costs under item 5 (Defendant's motion to strike out the Statement of Claim) submitted at $330.00, the costs cannot be allowed as the Court did not award costs for said motion.
[9] Similarly, having regard to the Defendants's costs under item 5 (Plaintiff's motion to set aside Prothonotary Giles' order), submitted at $330.00. The order of this Court rendered November 6, 2000 reads:
The applicant's motion to vary the order is dismissed.
[10] Once again, as the Court did not award costs, none can be allowed.
[11] Having regard to the preceding findings, and after a thorough review of the file, the Defendant's costs on file T-207-00, submitted at $660.00, are disallowed.
[12] I will now turn my attention to the costs of the appeal. On February 25, 2002, the Appellant (Plaintiff) discontinued his appeal in file A-752-00. In written submission filed August 22, 2003 the Respondent (Defendant) refers to Rules 402 and 412 and submits various factors which should be considered by the assessment officer in exercising discretion.
[13] Rule 402 of the Federal Court Rules 1998 states:
Unless otherwise ordered by the Court or agreed by the parties, a party is against when an action, application or appeal has been discontinued or against when a motion has been abandoned is entitled to costs forthwith, which may be assessed....
[14] Further, Rule 412 states:
The costs of a proceeding that is discontinued may be assessed on the filing of the notice of discontinuance.
[15] A thorough review of the file indicates that there is no agreement of the parties or order of the Court which would supercede the provisions of Rules 402 and 412 of the Federal Court Rules 1998. Consequently, the Respondent (Defendant) is entitled to costs of the Appeal.
[16] Having regard to the Defendant's submissions concerning factors to be considered, although relevant to the issues before me, as the Appellant's submissions were not germane to the assessment, costs will be allowed, except where inconsistent with the Tariff.
[17] Counsel for the Respondent (Defendant) have submitted costs in the amount of $440.00 under item 19 for her Memorandum of Fact and Law. The Respondent's Memorandum of Fact and Law, filed June 28, 2001, consists of seven pages. Having regard to the length of the Respondent's Memorandum of Fact and Law and the fact that the Defendant (Respondent) submitted costs at the lower end of Column III for item 19, costs are allowed as submitted.
[18] The Defendant has submitted disbursements in the amount of $245.01. After a thorough review of the files it appears that there is no affidavit of disbursements on either file T-207-00 or A-752-00, however, the Defendant has attached two invoices to the draft Bill of Costs. A review of these invoices indicates that both are from St. Joseph Print Group Inc. Further examination shows that the invoices are dated March 17, 2000 and September 25, 2000. As the first document filed by the Respondent on file A-752-00, was a Notice of Appearance filed on January 8, 2001, it would appear that the disbursements are not related to that particular file. Further, from a review of file T-207-00, it is unclear what these disbursements may relate to on this file.
[19] Under the circumstances, I will apply discretion consistent with the approach taken in Grace Carlile v. Her Majesty the Queen 97 D.T.C. 5284 at 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. This presumes a subjective role for the Taxing Officer in the process of taxation.
[20] There being no Affidavit of disbursements to prove the disbursements, and a thorough review of both files not revealing the information required to make an informed determination, these disbursements cannot be allowed.
[21] Finally, under item 26, the Defendant has submitted costs for the assessment in the amount of $220.00. As these costs are at the lower end of column III, these costs are allowed as submitted.
[22] In its Bill of Costs, the Defendant submitted total costs in the amount of $1,565.01. In view of the foregoing, and for the reasons stated above, costs are allowed in the amount of $660.00. A certificate of assessment will issue in this amount.
"Bruce Preston"
Bruce Preston, Assessment Officer
Toronto, Ontario
May 20, 2004
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-207-00
STYLE OF CAUSE: EMILE MENNES
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS -
REASONS BY: BRUCE PRESTON, ASSESSMENT OFFICER
DATED: MAY 20, 2004
SOLICITORS OF RECORD:
Emile Mennes
Campbellford, Ontario
FOR THE PLAINTIFF (Self-Represented)
Morris Rosenberg
Deputy Attorney General
Toronto, Ontario
FOR THE DEFENDANT
FEDERAL COURT
Date: 20040520
Docket: T-207-00
BETWEEN:
EMILE MENNES
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT OF COSTS - REASONS