Date: 20050330
Docket: A-348-03
Citation: 2005 FCA 109
BETWEEN:
THE ATTORNEY GENERAL OF CANADA on behalf of the
CANADIAN FOOD INSPECTION AGENCY
Applicant
and
HOWARD WALKER
Respondent
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to a judgment dated January 28, 2004, by the Federal Court of Appeal dismissing the application for judicial review with costs to the Respondent, Howard Walker. The application for judicial review was from a decision of the Agriculture and Agri-Food Administrative Monetary Penalties Act Review Tribunal (the "Review Tribunal") established pursuant to the Canada Agricultural Products Act. The Review Tribunal's decision dated June 3, 2003 in the matter of Howard Walker v. Canadian Food Inspection Agency determined that the Respondent, Howard Walker did not commit a violation under subsection 176(2) of the Health of Animals Regulations.
[2] After receiving a request for an assessment appointment, a letter was issued setting a timetable for written submissions. The Respondent served and filed an Amended Bill of Costs and supporting affidavit with proof of service on December 17, 2004. The Applicant filed a responding letter of submissions on January 5, 2005.
The Respondent's Position
[3] The Respondent submits in the Affidavit of Patrick Lassaline, sworn December 16, 2004, that the assessable services and disbursements claimed (Exhibit "A", the Respondent's revised Bill of Costs) "...appropriately compensates the successful Respondent on the Appeal." The affidavit indicates on a straight hourly basis the cost of defending this appeal would be approximately $6,190.00 which does not include all the administrative and clerk time expended on this matter. Respondent counsel also argues "...the appeal of this matter was of importance to farmers across the country and warranted a concerted opposition by the Respondent."
The Applicant's Position
[4] The Applicant takes issue with a number of the assessable services and specific disbursements requested in the Respondent's Bill of Costs as well as the Respondent's arguments justifying these items. In the Applicant's letter dated January 5, 2005, counsel refers to Rule 407 of the Federal Court Rules, 1998 and indicates these party-and-party costs need not be at the top of the range of Column III . In fact, the Applicant points to Rule 400(3) of the Federal Court Rules, 1998 and argues the units should be more in the lower to mid-level range in light of the 14 factors that are listed to be considered. In addition, the Applicant indicates the Respondent cannot rely on the importance of the appeal to the Canadian Food Inspection Agency ("CFIA") to increase the units to the top of the scale of Column III since this contention is outside the scope of the Rule 403(3) factors. On a similar vein of argument, the Applicant argues the Respondent did not represent the cattle industry so he cannot use this argument to maximize the assessable service units in Column III. The Applicant refers to the $500.00 penalty initially assessed which she alleges was only important to the Respondent himself. Finally, the Applicant suggests the facts and evidence were not complex which she indicates is supported by the relatively small disbursement amount of $66.88 for case law research.
[5] Specifically on this latter point and the assessable services claimed, the Applicant submits Item 22(a) of Tariff B of the Federal Court Rules, 1998, should be assessed at two units per hour when she suggests that the facts and evidence were not complex. In addition, she submits the units claimed for Item 22(b) should be disallowed since there is no Court Direction authorizing participation of second counsel in this matter. Similarly with regards to the 4 units claimed for Item 24 (Travel by counsel...), the Applicant relies on Beaulieu v. Canada (2000), F.C.J. No. 2127 (A.O.) in her submission that an assessment officer cannot allow fees for counsel travel in the absence of a direction from the Court. She also submits the disbursement claimed of $114.40 for travel should be disallowed for the same reasons. The Applicant compares Item 15 and Item 19 as a request by the Respondent for the same assessable service twice. In addition, she notes Item 15 applies solely to the preparation and filing of written argument for a trial or hearing and should not be allowed since that assessable service was for a hearing before the Review Tribunal and not for the proceeding before the Court of Appeal. With regard to Item 26 (Assessment of Costs), the Applicant refers to Rule 408(3) of the Federal Court Rules, 1998 and the discretion that is to be exercised by the Assessment Officer. However, she submits that this assessment is a relatively simple one and indicates that no more than 2 units should be allowed for this assessable service.
[6] Finally, the Applicant submits that certain disbursements should not be allowed and
she supports this submission by reference to the Federal Court Rules 1998, Tariff B, subsection 1(4):
1(4) Evidence of disbursements - No disbursement, other than fees paid to the Registry, shall be assessed or allowed under this Tariff unless it is reasonable and it is established by affidavit or by the solicitor appearing on the assessment that the disbursement was made or is payable by the party.
[7] She specifically refers to both the 'courier charges' and the 'agency fees' and submits Respondent's counsel has not established the reasonableness of such expenses. The Applicant requests the assessable services and disbursements in the Respondent's Bill of Costs be reduced for all the reasons stated above.
Assessment
[8] I have reviewed all the materials in the record and have summarized only those issues which are relevant for the disposition of this assessment.
[9] I wish to note that the Tariff B unit value was adjusted to $110.00 by the Chief Justice effective April 1, 2001 and that value remained unchanged by similar memoranda dated March 15, 2002, March 25, 2003 and March 26, 2004. I will be adjusting the dollar amounts for the assessable services claimed accordingly.
[10] The Respondent is requesting 3 units for Item 22(b) of Tariff B which is a fee for second counsel. Tariff B Item 22(b) reads as follows:
"(b) to second counsel, where Court directs, 50% of the amount calculated under paragraph (a)."
[11] I have reviewed the material in the Court record and have determined that no such direction exists. Therefore this item is disallowed.
[12] Similarly for Tariff B Item 24, the 4 units claimed must be disallowed. I rely on the reasons of Taxing Officer François Pilon in Beaulieu v. Canada, [2000] F.C.J. 2127 at paragraph 10:
... In item 24 of the bill of costs the respondent claimed the sum of $500 for travel by counsel. In her written submissions in reply Ms. Lavergne was prepared to reduce this amount to $100. At the same time, the appellant based her objection on the phrase "at the discretion of the Court" contained in item 24, which she submitted did not extend to the assessment officer where no specific directions to that effect had been given. The appellant is correct: only judges have the discretionary authority to compensate counsel for travel. (emphasis mine)
[13] The Applicant has taken issue with the Respondent claiming the top of the range of Column III for certain assessable services. I turn paragraph 7 of the reasons of Taxing Officer Charles E. Stinson in Bruce Starlight et al. v Her Majesty the Queen, [2001] F.C.J. 1376:
... The structure of the Tariff embodies partial indemnity by a listing of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing and synthesizing of issues leaving relatively straightforward issues for trial. Therefore, each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation. If items are a function of a number of hours, the same unit value need not be allowed for each hour particularly if the characteristics of the hearing vary throughout its duration. In this bill of costs, the lower end of the range for item 5 and the upper end of the range for item 6 are possible results. Some items with limited ranges, such as item 14, required general distinctions between an upper and lower assignment in the range for the service rendered.
...
[14] With this latter precedent in mind, I intend to deal with the remaining assessable items within their particular circumstances.
[15] I must agree with the Applicant's submissions with regards to Item 15 and Item 19 that it appears the Respondent has requested the same assessable service twice. I disallow the 7 units claimed for Item 15 since the Respondent will be allowed to claim Item 19. However, I reduce this latter assessable service to 5 units ($550.00) since in my opinion this was not a complex matter which was confirmed by my review of the Applicant's and Respondent's Records.
[16] The Respondent has requested 6 units for Item 22(a) two hours of attendance by first counsel at the hearing of this matter. The Minutes of Hearing confirms the actual time spent at the hearing was an hour and 35 minutes. However, common sense indicates to me that some time was spent checking in with the Court Registrar in addition to a short amount of time spent by the Respondent packing up his materials at the end of the hearing. Therefore, the 6 units ($660.00) are allowed for this item.
[17] This assessment of the Bill of Costs has proceeded by way of written submissions. It is my respectful opinion they were quite simple in nature and the parties did participate in the filing of materials which did assist me in the assessment of this Bill of Costs. I reduce Item 26 to 2 units ($220.00) for reasons I have outlined in the first two sentences of this paragraph. Respondent is allowed a total of units 13 ($1,430.00) for the assessable services plus GST of $100.10 and PST of $114.40.
[18] I share some of the concerns of the Applicant when she submits "...there are no particulars describing various items listed as disbursements. Both "Courier Charges - $94.07" and "Agency Fees - $205.50" are not sufficiently specific to determine the reasonableness of such expenses and should therefore be disallowed." Once again I rely on common sense and will allow the courier charges disbursements of $94.07. It is reasonable to me given the distance the Respondent's Coldwater, Ontario offices are from the Toronto Registry, that the efficient means of serving and filing of documentation would be by courier. In addition, I note a number of the Respondent's affidavits of service indicate various documents were sent for service by courier. However, the same cannot be said regarding the disbursement of agency fees. In these circumstances and in the absence of any justification or explanation for this disbursement, I disallow the $205.50 for agency fees.
[19] The remaining disbursements are allowed which includes the amounts for travel. The wording in Tariff B Item 24 "...at the discretion of the Court" is for the assessable services that may be claimed by counsel as indemnification for travel time. I am of the opinion this does not prohibit me from allowing associated and necessary travel disbursements.
[20] The Bill of Costs in A-348-03 is assessed and allowed in the amount of $2,109.50 which includes assessable services of $1,430.00, disbursements of $434.58, GST of $130.52 and PST of $114.40 A certificate is issued in this proceeding for $2,109.50.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
March 30, 2005
COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-348-03
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA on behalf of
the CANADIAN FOOD INSPECTION AGENCY
Applicant
and
HOWARD WALKER
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON, Assessment Officer
DATED: MARCH 30, 2005
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE APPLICANT
LEWIS DOWNEY TORNOSKY
& LASSALINE
Professional Corporation
Barristers & Solicitors
Coldwater, Ontario FOR THE RESPONDENT