BETWEEN:
EMILE MARGUERITA MARCUS MENNES
on his own behalf and that of all disadvantaged inmates in Canada in the care and
custody of the Correctional Service of Canada under the Corrections and
Conditional Release Act
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
B. PRESTON
ASSESSMENT OFFICER
[1] As the Defendant's Bill of Costs relates to this file and A-360-00, I will deal with the costs of the Appeal in these reasons and a copy of these reasons will be filed on A-360-00.
[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. The parties filed submissions in the time allowed.
[4] On December 27, 2001, the Plaintiff discontinued this proceeding. In written submissions filed August 22, 2003, the Defendant refers to Rules 402 and 412. Pursuant to Rule 402, unless otherwise ordered by the Court or agreed by the parties, the Defendant is entitled to her costs forthwith. Further, pursuant to Rule 412 the costs of a proceeding that is discontinued may be assessed on the filing of the notice of discontinuance. 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 Defendant is entitled to costs However, having regard to motions, the Defendant is only entitled to costs as allowed by the Court pursuant to Rule 400(1).
[5] In written submissions filed September 2, 2003, the Plaintiff, a self-represented litigant, submits:
I submit that the bills of cost 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.
[6] Having regard to the Plaintiff's submission 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 cost 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.
[7] 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 a party's advocate, one cannot certify items which fall outside the authority of the orders rendered and the tariff.
[8] The Defendant, in her Bill of Costs, submits $150.00 pursuant to Tariff A as the fee payable on the issuance of a Statement of Defence. On reviewing the file, it appears this fee was never paid, moreover, a review of Tariff A indicates that no such fee is payable on the filing of a Statement of Defence. Therefore, the fee for filing a Statement of Defence, submitted at $150.00 is not allowed.
[9] Counsel for the Defendant have submitted costs in the amount of $440.00 under item 2 for preparation and filing of a Statement of Defence. A Statement of Defence was filed October 23, 1998, and given that costs are submitted at the lower end of Column III, these costs are allowed as submitted.
[10] Having regard to the Defendant's motion to strike written examination questions, the Defendant has submitted costs in the amount of $330.00 under item 5. By way of Reasons for Order and Order dated August 19, 1999, the Court disposed of the motion. In the order there is no mention as to costs. As no costs were awarded for this motion, no costs are allowed.
[11] Similarly, the Defendant has submitted costs of $330.00, under item 5, concerning the Plaintiff's motion to appeal the Prothonotary's order. By way of Order dated May 2, 2000, the Court dismissed the Plaintiff's appeal. Once again, in the order there is no mention of costs. Again, as no costs were awarded for this motion, no costs are allowed.
[12] Having regard to item 7, Discovery of documents, in written submissions filed August 22, 2003, the Defendant submitted that the discovery of documents was completed. As the Plaintiff has made no submissions germane to this point, costs are allowed as submitted in the amount of $220.00.
[13] I will now turn my attention to the costs of the Appeal. On December 27, 2001, the Appellant (Plaintiff) discontinued his appeal in file A-360-00. Although it is unclear whether the Plaintiff's submissions, that he was forced to discontinue the proceedings, relate to the Appeal, as indicated earlier, I do not have jurisdiction concerning this issue. Moreover, as mentioned earlier, pursuant to Rules 402 and 412 the Respondent is entitled to her costs.
[14] Counsel for the Defendant (Respondent) has 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 December 11, 2000, consists of seven pages. Having regard to the length of the Respondent's Memorandum of Fact and Law and the fact that the costs were submitted at the lower end of Column III for item 19, costs are allowed as submitted.
[15] The Defendant has submitted disbursements in the amount of $31.14. After a thorough review of the files, it appears that there is no affidavit of disbursements on either file T-1844-98 or A-360-00, however, the Defendant has attached an invoice to the draft Bill of Costs. A review of this invoice indicates that it is from Ikon Document Service. Further examination shows that the date of the invoice is April 10, 2000. As file A-360-00 was commenced on in May 12, 2000 it would appear that these disbursements are not related to that particular file. However, a review of file T-1844-98 reveals that the Defendant's Motion Record relating to the appeal of the prothonotary was filed on April 10, 2000, the same date as the invoice. It would appear that the invoice may relate to the appeal on file T-1844-98, for which costs were not awarded.
[16] Under the circumstances, I will apply discretion consistent with the approach taken in Grace Carlile v. Her Majesty the Queen (1997), 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.
[17] There being no Affidavit of disbursements to prove the disbursements are not related to the appeal from the Prothonotary's order, and as indicated earlier, no costs being awarded for that particular motion, these disbursements cannot be allowed.
[18] 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.
[19] In its Bill of Costs, the Defendant submitted total costs in the amount of $2,161.14. In view of the foregoing, and for the reasons stated above, costs are allowed in the amount of $1,320.00. A Certificate of Assessment will issue in this amount.
"B. Preston"
Bruce Preston, Assessment Officer
Toronto, Ontario
May 20, 2004
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1844-98
STYLE OF CAUSE: EMILE MARGUERITA MARCUS MENNES
on his own behalf and that of all disadvantaged inmates in Canada in the care and custody of the Correctional Service of Canada under the Corrections and Conditional Release Act
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)
|
|
Deputy Attorney General of Canada Toronto, Ontario |
FOR THE DEFENDANT |
FEDERAL COURT
Date: 20040520
Docket: T-1844-98
BETWEEN:
EMILE MARGUERITA MARCUS MENNES
on his own behalf and that of all disadvantaged inmates in Canada in the care and custody of the Correctional Service of Canada under the Corrections and Conditional Release Act
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ASSESSMENT OF COSTS - REASONS