Date: 20001106
Docket: A-233-98
BETWEEN:
GRACE CHISHOLM
Appellant
-and-
THE BANK OF NOVA SCOTIA
Respondent
ASSESSMENT OF COSTS - REASONS
P. PACE
ASSESSMENT OFFICER
[1] This is an assessment of the Respondent's party and party Bill of Costs, pursuant to the judgment of the Court, dated the 1st of June, 2000.
[2] Ms. Peigi Ross appeared on behalf of the Respondent and Ms. Grace Chisholm appeared on her own behalf.
[3] This assessment was originally scheduled before me on the 14th day of September, 2000. On that date, Ms. Ross appeared representing the Respondent, however no one appeared on behalf of the Appellant. Ms. Ross informed me that she had been in touch with counsel for the Appellant and that he had informed her that he no longer represented the Appellant in this case.
[4] He further informed Ms. Ross, that he had advised Ms. Chisholm of the ensuing Assessment of Costs, scheduled for the 14th of September, and had provided Ms. Chisholm with the documentation that had been served upon him relating to the assessment.
[5] It is to be noted that upon my review of the Court file in this proceeding, I was unable to locate neither a Notice of Charge of Solicitor nor a Motion on behalf of counsel for the Appellant seeking an order removing him as solicitor for the Appellant.
[6] Having regard to the circumstances, as outlined above and, notwithstanding Ms. Ross's preparedness to proceed I was not totally satisfied that Ms. Chisholm had in fact received Notice of the Assessment. Consequently, I adjourned the assessment to this date.
[7] On commencing the assessment, I informed Ms. Chisholm as to my functions as an Assessment Officer and indicated to her that each item in the Bill of Costs would be reviewed individually. I further advised her that she would be given an opportunity to make her comments regarding reasonableness, necessity and quantum on each item.
Assessment
[8] Item Number 19, Memorandum of Fact and Law. The Respondent claims seven (7) units.
[9] Ms. Chisholm objects to the number of units. States that seven units is too high.
[10] Ms. Ross argues that the factum was somewhat difficult to prepare since counsel for the Appellant did not define nor particularize the basis for the appeal.
[11] Ms. Ross further pointed out that the actual disbursements to her client for this item is eighteen hundred dollars ($1800.00). Further, that the Respondent had to take the time to define a response to the appeal without knowing what the grounds of appeal were.
[12] Ms. Chisholm stated that the Court reprimanded both sides for the delay in moving this appeal to hearing. However, neither party was penalized by the Court.
[13] Ms. Ross agreed that the Court did take issue with the progression of this proceeding. However, an issue arose right at the outset of the launching of the appeal with respect to the applicability of the new Federal Court Rules.
[14] The Respondent took the position that the Notice of Appeal was deficient in that it did not include the grounds for the appeal as required by the new Rules.
[15] Ms. Chisholm argued that the Respondent knew or ought to have known what this appeal was all about since this was an old issue. She suggested that only two (2) units be allowed for this item.
[16] While I agree with Ms. Chisholm's comment that the Respondent knew or ought to have known what the appeal was all about, I do not think, that of necessity, the Respondent would have known what the grounds of appeal were.
[17] On the other hand, the Court did make comments regarding the progress of this appeal and took counsel for both sides to task on their lack of understanding and adherence to the Rules.
[18] Having regard to the factors as set out under Rule 400(3) of the Federal Court Rules, I am not convinced that this was an overly complex appeal. The process may have become somewhat involved due, in my opinion, to both sides taking the positions they did regarding the applicability of the new Rules.
[19] With regards to Ms. Chisholm's suggestion that only two units ought to be assessed on this item. Subject to a Court order or direction, in assessing a party and party bill of costs an assessment officer is bound by the provisions of Rule 407 of the Federal Court Rules, which provides as follows:
| 407. Assessment according to Tariff B ... unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the Table to Tariff B. |
[20] Since, column III provides a range of 4 to 7 units and having regard to Rule 407, I will allow five units for this item.
[21] Item 20, Respondent seeks one (1) unit for requisition for hearing. Ms. Chisholm's position on this item is that if the Respondent filed a requisition then they are entitled to the amount claimed.
[22] While the requisition for hearing may have been filed by counsel for the Appellant, it is evident, from the Court file, that it generated several exchanges between counsel for the parties and between counsel and the Registry.
[23] Furthermore, item 20 of the Tariff does not refer to "filing" of a requisition, but merely refers to "requisition for hearing". This leads me to conclude that either party may seek indemnification under this item if they are awarded costs. Item 20 will be allowed as claimed.
[24] Item 21(a) on motion including preparation, etc. Respondent claims one (1) unit for the preliminary motion made at the opening of the appeal hearing.
[25] Having determined that no award of costs was made by the Court with regards to this motion, this item is not allowed.
[26] Item 22 (a), counsel fee, first counsel. Respondent claims three (3) units.
[27] Ms. Ross stated that the hearing lasted approximately one hour. That fees for one counsel only are being sought notwithstanding the fact that she was in attendance before the Court also.
[28] Ms. Chisholm argues that the hearing only lasted twenty five minutes.
[29] On my review of the official Court Record, I have determined that the hearing lasted approximately one hour and six minutes. Approximately six minutes of this time was spent on the argument on the preliminary motion. I will allow item 22 as claimed.
[30] Item 25, services after judgment. Respondent claims one (1) unit. Ms. Ross submits that this item covers the drafting of the Bill of Costs as well as other material related to the Appellant's leave to Appeal Application to the Supreme Court of Canada.
[31] Ms. Chisholm's position is that she should not have to bare the Respondent's costs of this item.
[32] Item 25 in the tariff provides for services after judgment not otherwise specified. The Court dismissed this appeal with Costs. The drafting and preparation of the Bill of Costs is a service which, in my opinion, clearly falls within the ambit of this tariff item and thus is clearly assessable. Item 25 is allowed as claimed.
[33] Item 26, assessment of costs. Respondent claims six (6) units. Ms. Ross submits that this is a second attendance on this assessment. That she was prepared to proceed on the first attendance. That counsel for the Respondent was not given any notice, as required by the Rules, of Appellant's counsel's withdrawal from the case. That the appointment as well as other relevant documents for the first attendance date, were properly served on counsel for the Appellant. That said counsel advised Ms. Ross that Ms. Chisholm would be provided with the documentation by him.
[34] Ms. Chisholm argued that her first knowledge of this assessment was when she received the package of documents from Ms. Ross. That she was not made aware by her counsel that there was to be an assessment.
[35] Having regard to the Court's comments in this matter, with respect to lack of counsel's adherence to the Rules, I am not convinced that Ms. Chisholm was properly instructed or made aware of the initial appointment date for this assessment. The fact that she appeared here today, after being served personally, supports my thinking on this point and justifies the earlier postponement.
[36] Nevertheless, counsel for the Respondent did discharge their obligation under the Rules, by serving counsel of record for the Appellant with the Bill of Costs and appointment and did appear before me both on the initial date as well as today ready to proceed.
[37] While I empathize somewhat with Ms. Chisholm regarding this point, I cannot in any way shift any of the responsibility for the delay of this assessment on to the Respondent. Consequently, item 26 will be allowed as claimed.
[38] Item 27, such other services as my be allowed by the assessment officer. Respondent claims two (2) units. This item is withdrawn.
[39] Item 28, services in a province by student at law, etc. Respondent claims three (3) units. Ms. Ross states that one student did the necessary research on this matter as outlined in the affidavit of Deborah Suggitt, filed in support of this assessment.
[40] Ms. Chisholm made no comment regarding this item.
[41] Having reviewed the Suggitt affidavit, I am satisfied that this is properly proven and will be allowed as claimed.
Disbursements
[42] All items claimed as disbursements in this Bill, with the exception of $75.00 for filing fee and $20.70 for delivery, are found to be proper and reasonable and will be allowed as claimed.
[43] The disbursements for $75.00 and $20.70 as set out above are withdrawn.
[44] Having regard to the foregoing, I have assessed the Respondent's Bill of Costs at $1900.00 for fees, $586.14 for disbursements and $174.03 for GST for a grand total of $2660.17. A certificate of assessment will issue for this amount.
"Peter Pace"
P. Pace
Assessment Officer
Toronto, Ontario
November 6, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-472-00 |
| STYLE OF CAUSE: Grace Chisholm v. The Bank of Nova Scotia |
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
| ASSESSMENT OF COSTS - REASONS BY: PETER PACE |
DATED: Monday, November 6, 2000
| SOLICITORS OF RECORD |
| Ms. Grace Chisholm For the Appellant, on her own behalf |
Ms. Peigi Ross For the Respondent