Date: 20000526
Docket: T-1238-98
BETWEEN:
DANIEL D. GEMBY
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
ON BEHALF OF HUMAN RESOURCES CANADA
AND CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
ASSESSMENT OF COSTS - REASONS
CHARLES E. STINSON
Assessment Officer
[1] The Applicant was partially successful with costs in this proceeding for judicial review and presents a revised party and party bill of costs:
| Item Description Units Claim Amount |
| 1 Prep. & filing of originating |
| documents (Notice of Application) 4-7 7 $700.00 |
| 4 Preparation and filing of an un- |
contested motion (leave to proceed
| in Federal Court) 2-4 4 $400.00 |
| 5 Preparation and filing of contested |
| motion (Notice of Status Review) 3-7 7 $700.00 |
| 13(a) Counsel Fee - Preparation for Trial |
| or Hearing 2-5 5 $500.00 |
| 14(a) Counsel Fee - to first counsel, |
| per hour in Court 2-3 3 $300.00 |
| 24 Travel by counsel to attend |
| hearing 1-5 5 $500.00 |
| 26 Assessment of costs 2-6 6 $600.00 |
_______
| Total: $3,700.00 |
| ... Disbursements Amount |
| Fed. Ct. Filing Fee (Ntc. of Judicial Review) $20.00 |
| Fed. Ct. Filing Fee (Filing materials) $50.00 |
| Fed. Ct. Filing Fee (Requisition For Hearing) $50.00 |
| Photocopies $121.45 |
| Postage $17.80 |
| ... Index Labels (Applicant"s Record) $44.75 |
Mileage (travel to and from
| Regina at 420 km @ $0.35/km) $147.00 |
| Total: $451.00 |
_______
| Total Fees and Disbursements: $4,151.00 |
Before me, the parties indicated that a preliminary objection by the Respondent concerning the presence of "without prejudice" materials had been resolved.
The Applicant"s Position
[2] The Applicant argued that this matter, concerning the authority of a Board of Referees (hereafter, the Board) to approve a de novo rehearing relative to employment insurance benefits and certiorari to require payment of benefits pursuant to an earlier decision of the Board, represented an extended conflict warranting the maximum under Column III. Initially, the bill of costs served on the Respondent did not claim maximum fees, but the delay in resolution warranted substitution of a revised bill of costs claiming fees at the maximum. The Applicant"s employer has appealed the Umpire"s decision. The benefits originally awarded to the Applicant have not yet been paid. The Court"s conclusion at paragraph [7] of the Reasons for Order dated September 2, 1999, that the Board did not have the authority to approve a de novo hearing in the circumstances, was the very position asserted by the Applicant from the beginning and therefore Rule 409 should be read with Rule 400(3)(a) to allow maximum fees as a function of the result.
[3] The Applicant argued that Rule 400(3)(c) applies, in that paragraph [14] of the Reasons supra noted intervention by the Court in the unusual circumstances of the Board not following the statutory appeal process. The denial of benefits initially awarded to the Applicant required him to spend over $5,000.00 to re-assert his entitlement. The Applicant argued that Rule 400(3)(h) applies, in that paragraph [15] of the Reasons supra recognizes that bureaucrats cannot ignore regulatory requirements. That is, the Respondent informed the Court that the Employment Insurance Commission had devised a new process to preclude the sort of difficulties encountered by the Applicant.
[4] The Applicant noted that, despite this change, the Respondent still maintained its opposition thereby forcing the Applicant to incur costs to properly pursue his rights in this Court, but not in a vexatious manner so as to unduly lengthen the judicial review. Any lengthening of the process was because, at each stage of the conflict, the Applicant maintained his entitlement to benefits and the Respondent in turn refused to agree. The relevant issue was not whether the Applicant could have agreed to a de novo hearing, but rather the authority of the Board to ignore the regulations thereby usurping process not available to it. This point was important for others, and not just the Applicant. The Applicant noted that the Respondent countered a written offer to settle by proposing a Column lower than that authorized by the Court"s Order. The evidence discloses the effort and costs associated with this conflict. The item 24 fee and associated disbursements for travel for the 4 hour round-trip between Estevan and Saskatoon recognize that counsel"s billable time was necessary and that wear and tear on a private vehicle occurred.
The Respondent"s Position
[5] The Respondent argued that, relative to Rules 409 and 403(3)(a), the Applicant is entitled to costs as a function of success, but not extra costs. As it was reasonable for the Respondent to have applied long standing policy consistent with case law approving de novo hearings, complexity is not a relevant issue for these costs. The Respondent asserted that a high legal bill tendered by the Applicant"s counsel was not a function of the Respondent"s conduct, but rather of errors made by the Applicant"s counsel. For example, the Applicant was at risk of losing on the judicial review due to the fault of his counsel in missing a status review deadline. The public purse should not have to bear such additional costs. In terms of Rule 400(3)(i), the Applicant"s conduct unnecessarily lengthened these proceedings, ie. application to the wrong Court and failure to file the Record on time. In terms of Rule 400(3)(k)(ii), the motion for leave to commence the judicial review was due to the Applicant"s negligence or mistake. If the Applicant had agreed to a de novo hearing as proposed by the Employment Insurance Commission, this matter would have been resolved long ago thereby precluding the Applicant"s costs. Therefore, the Respondent argued that delay on its part was not a factor.
[6] The Respondent argued that the settlement discussions concerning costs are irrelevant in this assessment because the Order provided for "costs on the usual party and party basis, in an amount the parties may agree upon or failing agreement in accord with Column 3", meaning column III was always available to the assessment officer. That the Respondent did not respond to a draft bill of costs until after the appeal period for the Order had expired is not relevant under Rule 409 in terms of unnecessarily lengthening proceedings. Relative to Rule 400(3)(e), the Respondent tried to settle costs, but the Applicant refused. As well, the Respondent argued that an appeal by the Applicant"s employer, not a party to this proceeding, is irrelevant to this assessment of costs. Finally, the Respondent argued that the disbursements for photocopies and index labels are excessive and not supported by the evidence as to reasonableness and necessity. Mileage should not be allowed in addition to item 24 fees. A reasonable total for disbursements would be $250.00.
Assessment
[7] This matter was not complex. However, it did prompt important considerations by the Court. I allow items 1, 13(a), 14(a) and 26 at 6, 4, 3 and 4 units respectively. The Orders for which items 4 and 5 are claimed were both silent on costs. The discretion described in Rule 400(1) must be a visible allowance by way of an order or judgment. This being absent here, there is no fee entitlement for items 4 and 5. As well, the context of Rule 2, defining "assessment officer", means that I do not exercise the "discretion of the Court" to authorize item 24 in the first instance. That authorization being absent, I disallow item 24. However, consistent with my decision in ITV Technologies, Inc. v. WIC Television Ltd.1, I allow the associated travel disbursements at a lower amount of $110.00. The mileage rate requested coincided with the employer-requested rate in the public service. I have assessed these costs consistent with Grace M. Carlile v. Her Majesty the Queen2. I reduce photocopies, charged at $0.35 per page, to 280 copies at $0.25 per page consistent with Local 4004, Airline Division of Canadian Union of Public Employees v. Air Canada3. I allow the remaining disbursements as presented.
[8] The Applicant"s bill of costs, presented at $4,151.00 is assessed and allowed at $2,062.55.
"Charles E. Stinson"
Assessment Officer
Dated, Thursday the 25th day of May, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1238-98
STYLE OF CAUSE: Daniel D. Gemby v. Her Majesty the Queen et al
| PLACE OF HEARING: Teleconference between Vancouver, B.C., Estevan and Saskatoon, Saskatchewan |
DATE OF HEARING: March 21, 2000
ASSESSMENT OF COSTS - REASONS OF CHARLES E. STINSON
DATED: May, 26th , 2000
APPEARANCES:
James F. Trobert for the Applicant
Marvin Luther for the Respondent
SOLICITORS OF RECORD:
Komarnicki Law Firm
Estevan, Saskatchewan for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent
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