Federal Court Decisions

Date: 20060815

Docket: T-401-05

Citation: 2006 FC 981

BETWEEN:

BRIAN C. BRADLEY

Applicant

and

THE ATTORNEY GENERAL

OF CANADA

Respondent

ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]               The Applicant, representing himself, sought judicial review of a determination by the Minister of Veteran Affairs (the Minister) that she had no jurisdiction to consider the Applicant’s pension application. The Court referred the matter back to the Minister for a determination of the pension application, refused to issue an order for mandamus and awarded costs of the judicial review to the Applicant. The Applicant presented this bill of costs (to include a service charge of 3% per day compounded daily if not paid immediately):

The Respondent noted that the actual total of these amounts is $2,403.893.00

[2]               On November 30, 2005, I issued a timetable for written disposition of the assessment of the Applicant’s bill of costs and cautioned him that:

…costs awarded in litigation are intended as an indemnity as opposed to damages. Further, litigation costs should be presented in a formal document entitled “Applicant’s Bill of Costs” and contain a descriptive listing of each item of costs together with the amount claimed for each item, i.e. registry fees: $5.00; photocopies: $7.00; facsimiles: $6.00 etc. An affidavit in support should summarize the purpose, necessity and basis for pricing of each item, as well as appending as exhibits any available invoices or statements of accounts. Written submissions, in the form of numbered paragraphs in a letter or a separate formal document, summarize a party’s argument….

The Applicant responded with a number of questions, including a request for clarification of the distinction between damages and an indemnity. On December 16, 2005, I issued these directions:

The Assessment Officer has noted Mr. Bradley’s letter dated December 2, 2005 and has directed that Mr. Bradley be informed that the Registry cannot advise or give opinions on the sufficiency of his proposed materials. However, the Assessment Officer draws the following to Mr. Bradley’s attention to assist him in understanding the process of assessment of litigation costs:

(i) An award of litigation costs is meant to indemnify a litigant for those expenses reasonably necessary to advance the proceeding. Such costs are not to result in profit for the litigant. Rather, if a litigant decided to spend $100.00 for a hearing transcript, he might claim said $100.00 as part of his bill of costs. Then, if he could demonstrate to the satisfaction of the Assessment Officer that said expense, i.e. the $100.00, was reasonably necessary to advance the litigation, said $100.00 would be approved as a litigation cost to “indemnify” the litigant for the $100.00 paid to the court reporting company for the transcript.

(ii) The process for satisfying the Assessment Officer as to whether a given expense should be allowed involves a supporting affidavit and written submissions. The affidavit describes each claim and amount in turn, as well as identifying and appending as exhibits copies of any invoices or statements from suppliers. For example, the affidavit might assert that it was necessary to pay $30.00 + GST to Smith Courier Company to deliver an application record to the Respondent and that a copy of the relevant invoice is attached as exhibit A to this my affidavit. If records are lost or unavailable, the affidavit should explain how that happened and also whether the figure of $30.00 is an estimate as opposed to an accurate recollection. The written submissions then outline the rationale for asserting that this $30.00 was reasonably necessary. This process is repeated in turn for each item of expense, i.e. Registry fees, photocopies, postage, facsimiles, etc.

(iii) Mr. Bradley’s letter dated November 4, 2005 purports to claim, as litigation costs, such things as loss of principal residence ($185,000.00) and loss of automobile ($18,500.00). For such claims to succeed, Mr. Bradley would have to follow the template above by demonstrating that payment of such expenses was reasonably necessary to advance the litigation. The timetable permits the Respondent to advance a rationale in the reply materials to challenge given claims. In the past, loss of possessions as a claim in litigation costs has been challenged on the basis that it is in the nature of damages as opposed to an expense to advance the litigation. Some or all photocopies have been challenged on the basis that they do not meet the test of reasonable necessity. The purpose of rebuttal materials (by Mr. Bradley in this instance) is to answer specific portions of argument advanced in the reply materials. This rebuttal cannot include new argument or evidence which should have been led in the first instance.

To permit Mr. Bradley to consider this latest information, the Assessment Officer has modified the previous timetable as follows….

This time extension was subsequently modified on more than one occasion further to the Applicant’s needs.

[3]               The Applicant requested assistance concerning a real estate appraisal from Nova Scotia. I refused and noted for him that conduct of his case, including the gathering of materials, was his responsibility and not that of an assessment officer. I doubt that Rule 408(1), giving me jurisdiction to direct the production of documents, permits me to compel non-parties to make productions. There ensued a string of correspondence from the Applicant outlining his efforts to secure residential real estate comparables from Nova Scotia, presumably to buttress that portion of his bill of costs addressing the loss and replacement of his principal residence. He added a claim for the costs of a trip to Nova Scotia for that purpose. As well, he advanced materials asserting deterioration of his health, i.e. $280,000.00 per visit (12 – 14 visits required) for “medical intervention” (letter dated May 31, 2006) by a department of neurosurgery in Sweden, exclusive of any costs to adjust his living habits as a function of said deterioration of his health. His letter dated June 15, 2006 asserted a revised claim for costs of $9,204,460.91 (including estimated inflation factor until September 30, 2006) “as a direct result of the Respondent’s irresponsible mishandling” of his application and discounted as irrelevant the notion that said claim was in the nature of damages as opposed to costs. This revised claim comprised $5,200,000.00 (including household operating expenses for the next forty years) for replacement of principal residence and contents; $1,430.01 for the Nova Scotia trip to determine comparables; $3,920,000.00 for medical intervention and $893.00 (exclusive of “professional direction”) for registry fees, photocopies, correspondence and facsimiles.

[4]               The Respondent asserted that the Applicant has not led any evidence to establish any portion of his claimed costs. Further, the Respondent is not responsible for the Applicant’s expenses of establishing his claim. The Respondent conceded that the Applicant is entitled to his reasonable and necessary disbursements for the judicial review, i.e. $50.00 filing fee for each of the instituting document and the requisition for hearing. However, the balance of the $893.00 should be disallowed as excessive and unreasonable. The remainder of the claimed amount for costs is in the nature of damages as opposed to costs and is not recoverable in this proceeding.

Assessment

[5]               It is not apparent whether compensation for the Applicant’s time is an issue, but for clarity, I note that the costs of a self-represented litigant are restricted to reasonable and necessary disbursements: see Turner v. Canada, [2001] F.C.J. No. 250 (A.O.), affirmed at [2001] F.C.J. No. 1506 (F.C.T.D.) and [2003] F.C.J. No. 548 (F.C.A.). I have not detailed the Respondent’s objection to the Applicant’s late amendment of his bill of costs as I find it moot in the face of the Applicant’s misconception of the nature and intent of costs or his wilful disregard of cautions that his claims were outside the parameters of costs. The Applicant, perhaps in anticipation of my certificate of assessment of a substantial sum for his costs and his scheduled treatment by a neurosurgeon, appointed an enduring power of attorney to administer his affairs. I find that irrelevant for my considerations.

[6]               My understanding of the scheme of costs is set out in Bill of Costs and Assessment, Federal Court[s] Practice, 2003 Update: Materials Prepared for the Continuing Legal Education Seminar, (September 19, 2003). Generally, the items claimed in the Applicant’s bill of costs are in the nature of damages because, to put it in the roughest sense, they were not incurred to advance each stage of this proceeding for judicial review. If, as alleged, they were incurred solely as a result of tortious conduct by the Respondent, they are not costs within the parameters of the judgment in this proceeding for judicial review and any recovery of said amounts would instead fall to a separate action for damages. In particular, the judgment for costs in this judicial review cannot be stretched to embrace the Applicant’s claims as advanced here, except for certain limited items.

[7]               My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment of costs is “rough justice, in the sense of being compounded of much sensible approximation”, is that discretion may be applied to sort out a reasonable result for costs equitable for both sides. I think that my view is reinforced by the editorial comments (see: The Honourable James J. Carthy, W.A. Derry Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005-2006 (Aurora,Ont: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an assessment of costs is more of an art form than an application of rules and principles as a function of the general weight and feel of the file and issues, and of the judgment and experience of the assessment officer faced with the difficult task of balancing the effect of what could be several subjective and objective factors. In Almecon Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 (A.O.) at para. [31], I found certain comments in the evidence, although self-serving, nonetheless to be pragmatic and sensible concerning the reality of a myriad of essential disbursements for which the costs of proof might or would exceed their amount. However, that is not to suggest that litigants can get by without any evidence by simply relying on the discretion and experience of the assessment officer. The proof here is less than absolute. The paucity of evidence of the circumstances underlying each expenditure makes it difficult for the respondent on the assessment of costs and the assessment officer to satisfy themselves that each expenditure was incurred as a function of reasonable necessity. The less that evidence is available, the more that the assessing party is bound up in the assessment officer’s discretion, the exercise of which should be conservative, with a view to a sense of austerity which should pervade costs, to preclude prejudice to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. Given my reading of the file, I doubt whether this Applicant’s conduct on his own behalf was so focused as to preclude extraneous disbursements. I allow $575.00 inclusive of taxes.

“Charles E. Stinson”

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-401-05

STYLE OF CAUSE:                          BRIAN C. BRADLEY

                                                            and

                                                            THE ATTORNEY GENERAL OF CANADA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                    CHARLES E. STINSON

DATED:                                                                                 August 15, 2006

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: