Date: 20050509
Docket: A-137-03
Citation: 2005 FCA 169
BETWEEN:
MOEZ KASSAM
Applicant
- and -
HER MAJESTY THE QUEEN
ATTORNEY GENERAL OF CANADA
Respondents
Assessment Officer
[1] A copy of these reasons is filed today in court files A-134-03 (Amin Kassam v. Her Majesty the Queen et al.), A-135-03 (Arbutus 1 Hr. Valet Inc. v. Her Majesty the Queen et al.) and A-136-03 (Minaz Kassam v. Her Majesty the Queen et al.) and applies there accordingly. Each Applicant's challenge of the decision of the Umpire concerning employment insurance was dismissed with costs. The judgments noted that, since the four matters were heard together by the Court, there would be only one set of costs with respect to the hearing. I issued a timetable for written disposition of the Respondents' bill of costs filed in each matter.
The Applicants' Positions
[2] The Applicants asserted financial hardship, asked generally that no costs be allowed to the Respondents and argued that the legal fees and disbursements claimed are unreasonable and excessive given that these proceedings were simply judicial reviews of decisions of the Umpire. As well, all four matters were heard together in approximately two hours, including the unsuccessful application concerning the representation by Moez Kassam of Minaz Kassam and Amin Kassam. Similarly, the several thousand dollars claimed for photocopies is unreasonable both because these were simple judicial reviews and because they represent duplication of costs given that all four matters were heard together. The Court's direction that there be only one set of costs precludes the claim by the Respondents in each file for counsel fee services such as the notice of appearance, record, affidavits and memorandum of fact and law. Moez Kassam directed a communication to the Respondents' counsel to the effect that the Court's denial of permission for him to represent Arbutus 1 Hr. Valet Inc. (hereafter "Arbutus") at the hearing precluded him from accepting any service on behalf of Arbutus. He asserted that he never proffered his address for service as valid for Arbutus.
The Respondents' Positions
[3] The Respondents argued that there is no evidence of financial hardship on the part of the Applicants and that the amount claimed in each bill of costs is consistent with tariff limits and reflects appropriately the requisite preparation, research and filing of materials for all stages of these four matters. The photocopying charges address only materials required for service and filings, but do not include general office photocopying. The judgments restricting the Respondents to one set of costs were referring only to the actual attendance at the hearing (claimed in court file A-137-03), but did not preclude claims for preliminary counsel fee items such as the notice of appearance etc. The assertion by Moez Kassam, ie. that he cannot accept service on behalf of Arbutus given the Court's order preventing him from representing Arbutus at the hearing, is irrelevant because the Respondents properly served the costs materials on the address for service provided by Arbutus. That Arbutus had the opportunity to respond, and chose to not do so, should not interfere with the Respondents' entitlement to the costs awarded by the Court.
Assessment
[4] Financial hardship is not a consideration in assessments of costs: see Bowland v. Canada [2003] F.C.J. No. 1142 (A.O.). The wording of the judgment in each matter does not introduce any novel concepts of costs. That is, the phrase in each judgment, "application is dismissed with costs", entitles the Respondents to costs in each of the four proceedings in accordance with the limitations posed by Rule 407 of the Federal Courts Rules, including counsel fees in each of the four proceedings for things such as item 2 for the notice of appearance objected to by the Applicants. However, that allowance is modified by the phrase in each judgment, "but since files A-134-03, A-135-03, A-136-03 and A-137-03 were heard together by the Court, there is one set of costs only with respect to the hearing", meaning that the Respondents may still claim things such as counsel fee item 2 in each of the four proceedings, but are restricted to claiming only a single item 14(a) relative to the four matters collectively for attendance at the hearing. The Order dated May 14, 2004, in directing that these four matters "be heard one immediately after the other", does not imply that the Court felt that the preliminary work for each was indistinguishable. By claiming item 14(a) only in the bill of costs for A-137-03, the Respondents have correctly applied the wording of the judgments with respect to costs, with one exception. Moez Kassam should not bear full responsibility for item 14(a) hearing costs to the exclusion of the other three Applicants, given that the hearing addressed discrete judicial reviews relative to each Applicant in turn.
[5] Although the Applicants, as lay litigants, did not necessarily isolate submissions for each item in the bills of costs, I find it difficult to ignore the sense in their materials that they were generally opposed to all aspects of the costs claimed. That does not mean that they should benefit by me stepping away from a position of neutrality to act as their advocate in challenging given items in a bill of costs. I should not certify unlawful items, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. In the circumstances of these pieces of litigation, the claims in the bills of costs are generally arguable within the limits of the award of costs.
[6] However, certain things warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bills of costs. Specifically, item 2 in Tariff B for counsel fees addresses the preparation and filing "of all defences, replies, counterclaims or respondents' records and materials". In practice, the available range under Column III of 4 - 7 units is applied as a single global allowance for the associated services. This precludes what the Respondents have done under item 2 in each bill of costs, ie. claimed individual and varying amounts from the available range for six areas of service, ie. the notice of appearance, two records and three affidavits. These were not the most complex of matters and there were likely certain common elements of work , but it is difficult to ignore the volume and subject of the records associated with them. I allow a single allowance for item 2, in each of the four bills of costs, of 5 units. Item 5 is claimed only in the bill of costs for A-137-03 for the Respondents' motion that these four matters be heard together. The resultant order was silent as to costs and therefore I cannot allow the 3 units claimed: see paragraph [6] of Balisky v. Canada (Minister of Natural Resources) [2004] F.C.J. No. 536 (A.O.).
[7] I concluded at paragraph [7] in Starlight v. Canada [2001] F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the tariff need not be used, as each item for the services of counsel is discrete and must be considered in its own circumstances. As well, some generalization is required between the available values in ranges. I do not think that these matters warrant the maximum 5 units claimed (available range = 2 - 5 units) under item 13(a) in each bill of costs for preparation for the hearing, but based on my examination of the record in each matter, something more than minimal effort was required. I allow 4 units for each matter. I think that, substantial work having been necessary to prepare, the actual hearings were rather more straightforward and I allow only 2 units (available range = 2 - 3 units) per hour under item 14(a) to be apportioned equally in the respective bills of costs for the attendance at the hearings.
[8] My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (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 a reasonable result for costs equitable for both sides. The proof here is vague. 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 relative to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. The photocopy charges constitute the major portion of the amounts claimed in the bills of costs for disbursements. With particular regard to Canadian Union of Public Employees, Local 4004 v. Air Canada [1999] F.C.J. No. 464 (A.O.), I think that it is difficult here to determine the number of copies or sets of materials used for essential service and filing. I reduce the disbursement claims of $2,712.51, $1,074.85, $2,246.79 and $2,456.31 respectively in court files A-137-03, A-134-03, A-135-03 and A-136-03 to $2,357.51, $939.85, $1951.79 and $2,121.31. It appears that the Respondents have claimed disbursements for courier fees in court file A-137-03 relative to their motion that these matters be heard together. I have taken that into consideration.
[9] In court file A-135-03, the order dated February 27, 2004, granted leave for Arbutus as a corporation to "be represented by a personal representative other than its solicitor". This followed shortly a discussion by Moez Kassam on February 13, 2004, with the Registry (confirmed in writing to Mr. Kassam at his address for service) concerning the necessity of seeking leave of the Court to permit such representation. Shelina Dhanani signed court documents for Arbutus as its personal representative at a different address for service. Shelina Dhanani did not appear formally at the hearing. Instead, Moez Kassam's oral motion for leave to represent Arbutus was denied with directions that the hearing proceed on the basis of written submissions filed. The decision of the Court with respect to Arbutus was sent to Moez Kassam at his address for service: he did not appear to refuse it. The record discloses Moez Kassam communicating with the Board of Referees on behalf of Arbutus to obtain its hearing materials for use at the judicial review (letter dated September 21, 2004). The record discloses evidence, characterized as overwhelming by the Umpire and accepted in various decisions, of a personal or common-law relationship between Moez Kassam and Shelina Dhanani, the latter being the registered officer for Arbutus. The Respondents' motion record for leave for an extension of time to file certain evidence asserts that Moez Kassam purported to act for Arbutus at various times, including the hearing before the Umpire. Other evidence in the record suggests that Moez Kassam's role in the operation of Arbutus was more akin to that of Shelina Dhanani. Finally, the affidavit of Mary Holland sworn September 30 and filed October 4, 2004, at the hearing, confirms that service of documents on Arbutus at Moez Kassam's address for service was successful. I am satisfied that Arbutus has had sufficient opportunity to respond to the assessment materials.
[10] The Respondents' bill of costs in court file A-137-03, presented at $8,402.39, is assessed and allowed at $3,677.54. The Respondents' bill of costs in court file A-134-03, presented at $4,340.09, is assessed and allowed at $2,160.64. The Respondents' bill of costs in court file A-135-03, presented at $5,594.06, is assessed and allowed at $3,243.42. The Respondents' bill of costs in court file A-136-03, presented at $5,818.25, is assessed and allowed at $3,424.80.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-137-03
STYLE OF CAUSE: MOEZ KASSAM
- and -
HER MAJESTY THE QUEEN et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE
OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: May 9, 2005
SOLICITORS OF RECORD:
John H. Sims, Q.C. for Respondents
Deputy Attorney General of Canada