Date: 20021021
Docket: T-2326-98
Neutral citation: 2002 FCT 1094
Vancouver, British Columbia, Monday, the 21st day of October, 2002
BETWEEN:
BARBARA MUELLER
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1] The Court dismissed this application for judicial review with costs. I issued a timetable for written disposition of the Respondent's Bill of Costs.
The Applicant's Position
[2] The Applicant objected generally to the amount claimed on the basis of inconsistencies of claims in a number of draft bills of costs forwarded to her for her consent, i.e. item 26 is claimed in three of four drafts. The Applicant argued further to Rule 400(5) that the Respondent uses Column III, instead of Columns I or II, without adequate evidence in support. The Applicant argued that, attorneys of the Department of Justice being salaried employees of the public service, she has already paid the counsel fees portion of costs by virtue of being a taxpayer.
[3] The Applicant conceded $16.90 for transcripts. She argued that the $81.67 claimed for on-line searches should be reduced to the $6.87 shown in the first three drafts of the bill of costs. The Applicant asserted the same inconsistency for couriers, i.e. $53.38 in the first three drafts and $63.29 in the fourth. As well, she noted that the first and fourth drafts name different couriers. She argued that registered mail would have been adequate and therefore only $23.27 should be allowed. The Applicant asserted that the photocopying claim of $298.81 had been preceded by inconsistent amounts in previous drafts. She argued that an accurate and verified count of the number of copies should be produced for review followed by an allowance of only essential copies at $0.25 per page.
[4] The Applicant referred to a news article addressing a case in the Supreme Court of British Columbia in which the provincial government prevailed over three petitioners and in which the Court denied costs to the successful litigant on the basis of public interest and the negative financial implications for the unsuccessful litigants. The Applicant argued that any additional burden of costs, for a lay litigant faced with unlimited resources and overwhelming odds, would deter those fighting injustice and righting wrongs in the public interest.
The Respondent's Position
[5] The Respondent objected to reference to draft bills of costs not properly in evidence and argued that the Applicant has not been prejudiced by service of various drafts intended to achieve settlement of costs. The Respondent argued that Rule 407 prescribes Column III for costs, unless the Court otherwise orders, and that no further argument on the choice of fee items is necessary because said items, on their face, were suitable for a judicial review and are claimed at the minimum value. On the matter of the Applicant having already paid counsel fees through her taxes, the Respondent argued that (a) the Court having ruled on costs, an appeal is her only avenue of challenge concerning ability to pay; (b) Rule 400(2) provides for costs to or against the Crown; (c) The Queen v. James Lorimer & Co. [1984] 1 F.C. 1065 (F.C.A.) holds that costs may be awarded to the Crown; (d) costs are a deterrent to unmeritorious claims and (e) it is not the Applicant alone, but all taxpayers of Canada, who fund Crown counsel and those other taxpayers should not be forced to subsidize her unsuccessful litigation.
[6] The Respondent argued that previous attempts to settle costs are irrelevant to this assessment and noted that not all costs in evidence, nor GST, have been claimed. The Respondent argued that $81.67 represents less than one hour for on-line computer searches and is reasonable in the circumstances. The Respondent argued that the use of couriers is a standard practice in litigation. Registered mail sometimes cannot meet necessary time constraints. The Respondent argued that the cost of an "accurate and verified" count of photocopies would be prohibitive and that, the Applicant not having led evidence to the contrary, the amount claimed is reasonable on the record.
[7] The Respondent argued that a Supreme Court of British Columbia decision is not binding here and that, as the Federal Court of Canada has awarded costs, the Applicant's avenue of dispute is an appeal. As well, that British Columbia case addressed public interest litigation in contrast to this matter addressing the Applicant's personal tax situation, but without raising issues of general public importance. The Respondent argued that Rule 400 does not list ability to pay as a factor in costs and that there is no evidence in the record concerning the Applicant's ability to pay. The Respondent argued that Rule 400 does not list status as a lay litigant as a factor in costs. An award of costs against unsuccessful lay litigants will not deter meritorious claims, but rather will encourage meritorious claimants to seek counsel, and discourage unmeritorious claimants.
Assessment
[8] The Applicant in her submissions referred to speculation by the Court concerning jurisdiction to address her litigation: those submissions were irrelevant to my disposition of costs. The Respondent is correct concerning the use of Column III. If the Applicant had retained counsel, she might have been made aware of the nature of settlement overtures reflecting the shifts of position inherent in attempting to resolve litigation. I have ignored her submissions concerning previous drafts: what is relevant is whether the amounts claimed in the bill of costs as served and filed were reasonable. As is often the situation, the proof is less than absolute. However, I endorse the sentiment (addressing counsel fees) of Lord Justice Russell in Re. Eastwood (deceased):
...In our view, the system of direct application of the approach to taxation of an independent solicitor's bill to a case such as this has relative simplicity greatly to recommend it, and it seems to have worked without it being thought for many years to lead to significant injustice in the field of taxation where justice is in any event rough justice, in the sense of being compounded of much sensible approximation...my emphasis.
I will apply Carlile v. The Queen 97 D.T.C. 5284 concerning threshold of proof. I allow the counsel fees as presented and all disbursements as presented except for photocopies. It appears that the last invoice for photocopies was dated March 31, 1999 meaning that the Respondent has incurred costs not claimed in the bill of costs. A source outside the law firm office was used. I allow a reduced amount of $250.00.
[9] The bill of costs of the Respondent, presented at $1,660.67, is assessed and allowed at $1,611.86.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2326-98
STYLE OF CAUSE: Barbara Mueller v. AGC
PLACE OF HEARING: Vancouver, BC
REASONS FOR ASSESSMENT OF COSTS : CHARLES E. STINSON
DATED: October 21, 2002
SOLICITORS OF RECORD:
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada