BETWEEN:
and
OF CANADA
ASSESSMENT OF COSTS - REASONS
Assessment Officer
[1] This appeal, from a decision of the Federal Court dismissing the Appellant’s application for judicial review of a decision of the Appeal Division of the National Parole Board which had concluded that he should be detained until the expiry of his sentence as an inmate in a federal penitentiary, was dismissed with costs. I issued a timetable for written disposition of the assessment of the Respondent’s bill of costs.
I. The Respondent’s Position
[2] The Respondent argued that the claimed total of $3,548.46 for costs is reasonable and fair given certain factual underpinnings (the Appellant’s conviction for kidnapping and brutal assault of his former wife and the expressed concerns for the safety of his counsel in this matter, who also is his current wife, given documented failures by her to report incidents of violence) and given the Court’s disposition of this litigation. The Respondent’s conduct does not warrant any reduction, further to Rules 409 and 400(3) factors, of the maximum amounts claimed for counsel fees necessary to address confusing and voluminous facts and the associated numerous issues. The liaison by the Respondent’s counsel with opposing counsel to ensure the correct contents of the appeal book justifies the 1 unit ($120.00 per unit) claimed under item 18 for its preparation. The Record, four volumes and some 973 pages, together with the need for extensive review and organization of legal precedents, justifies the maximum 7 units claimed for item 19 (memorandum of fact and law). It follows that the maximum 3 units per hour claimed for items 22(a) and (b) (appearance of lead and second counsel respectively at the hearing) are justified. The work by counsel after judgment, i.e. reporting to the client and other administrative matters, justifies the 1 unit claimed for item 25 (services after judgment). The preparation for and carrying through of the assessment of costs justifies an exercise of Rule 408(3) discretion for 3 units under item 26.
II. The Appellant’s Position
[3] The Appellant conceded that there were a few discussions between counsel concerning the appeal book contents but argued that, as it was the Appellant who actually prepared it and made all copies, the Respondent cannot claim for item 18. The item 19 allowance should only be 1 unit given that the factum was, with minor exceptions, essentially identical to that used in the Federal Court. This litigation warranted only one counsel for the hearing at the minimum 2 units per hour for item 22(a). Item 25 should not be allowed as preparation of the bill of costs, the only work occurring after judgment, does not justify the $120.00 claimed. Online computer research charges are not permissible disbursements and were excessive, having been incurred as individual charges as opposed to the less costly monthly flat rate regardless of the number of searches.
III. Assessment
[4] The decision under appeal (dated May 30, 2005, in Federal Court file T-129-05) commented at pages 2-3:
I should add that the practice of counsels putting themselves in a position of acting as both counsel and witness in the same case should be discouraged. Despite the absence of a conflict of interest, it was at the very least awkward and inappropriate for the applicant to rely on his counsel oral representations made on her own behalf as the applicant’s wife before the National Parole Board.
Paragraph [59] of the Reasons in this Court read:
One final point. In view of Mr. Justice MacPhee’s remarks concerning the appellant’s relationship with Ms. Magas and the fact that she was at the centre of some of the events that form the factual foundation to this appeal, I have serious doubts as to whether Ms. Magas should have appeared either before the Federal Court or before us on behalf of the appellant. I voiced this concern to Ms. Magas at the end of the hearing and I trust that she will give my remarks serious consideration, should she again be tempted to appear on behalf of the appellant in related matters.
[5] The Appellant’s solicitor of record is Magas Law Office with Diane [my emphasis] Magas as responsible counsel, the same Diane Magas who was the subject of certain factual matters relevant in the substantive issues of this litigation. The materials led before me, in response to my directions, came from Condo Law Office with Diane [my emphasis] Condo as responsible counsel. The mailing address, telephone and facsimile numbers are identical for both Magas Law Office and Condo Law Office, and that coupled with the same first name for responsible counsel and the fact that the first word of the title, Condo Law Office, coincides with the surname of the Appellant, indicates to me that the Appellant’s wife finds it convenient to ignore the Court’s serious caveat concerning appropriate conduct by counsel.
[6] I do not wish to be seen as condoning a practice frowned upon in both courts. However, I note that the Appellant’s counsel did not attempt to argue that the costs should be minimal because the circumstances here of an inmate, for whom the record clearly established serious misconduct on several fronts relative to spousal relations, seeking certain parole considerations were not so serious as to warrant maximum costs. That might have caused me to speculate on her objectivity or diligence as an officer of the court, pursuant to the Federal Courts Act, s. 11(3), in bringing all relevant matters to my attention as the decision-maker in this assessment of costs, given her personal involvement in certain factual circumstances underlying this litigation. She did not, instead confining herself to objections somewhat technical in nature. Her submissions were rational and succinct, although I did not necessarily agree with all of them. I saw no reason at this late stage to adjourn this matter to require replacement counsel: in my view, the record was sufficient for my conclusions on the appropriate assessed amounts of costs.
[7] I concluded at para. [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, broad distinctions may be required between an upper versus lower allowance from available ranges. I allow the item 18 claim as I routinely do for successful respondents because the opposing sides in litigation both have serious obligations in ensuring the proper content of appeal books: see Actra Fraternal Benefit Society v. Canada, [2000] F.C.J. No. 1214 (A.O.). Relative to item 19, I agree that there was some duplication of effort, but I think the work by counsel in responding to an application for judicial review is different in nature from the sort of work required to frame the response to the appeal from the decision dismissing said application: see para. [10] of the Court’s decision outlining the issues in this appeal. The Column I result of 1 unit, suggested by the Appellant’s counsel, is beyond my jurisdiction. The Court referred to the statutory duty of provincial parole boards to hold the protection of society as the paramount consideration in the determination of any case. The Court then carefully considered the factual circumstances underlying this litigation. Those included assault (as held by MacPhee J.), in a courthouse, of the lawyer for the former wife of the Appellant. The maximum 7 units are warranted for item 19, which I allow. I allow item 22(a) at the maximum 3 units per hour.
[8] The Federal Courts Act, s. 3 and 5(1) defining the Federal Court of Appeal, and Rule 2 of the Federal Courts Rules defining an assessment officer, mean that the terms “Court” (as used in item 22(b) to require a direction of the Court for costs of second counsel) and “assessment officer” refer to separate and distinct entities. The Court did not visibly direct that the Respondent recover the costs of second counsel, meaning that I have no jurisdiction to allow them. I routinely allow item 25, as I will do here, unless I think that responsible counsel would not have reviewed the judgment and explained its implications to the client. I allow the 3 units claimed for item 26.
[9] My decision in Englander v. Telus Communications Inc., [2004] F.C.J. No. 440 (A.O.) confirms that I routinely allow costs for online computer research. However, that process includes consideration of whether all, none or only part of the research was reasonably necessary or irrelevant, i.e. some of the searches may extract cautionary or secondary authorities, keeping in mind the professional obligation of counsel both to the client for diligent representation and to the Court for as much assistance as reasonably possible on all aspects of the law potentially affecting final adjudication on the substantive issues of the litigation. 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 relying on the discretion and experience of the assessment officer. The proof here is less than absolute, i.e. the absence of the parameters for each instance of research. 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. I find the three amounts claimed, i.e. $13.55, $3.20 and $60.50, reasonable in the circumstances of this litigation and allow them as presented.
[10] The Respondent’s bill of costs, presented at $3,548.46, is assessed and allowed at $3,278.46.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-244-05
STYLE OF CAUSE: ROBERT CONDO
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
WRITTEN REPRESENTATIONS BY:
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Diane Condo
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FOR THE APPELLANT |
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R. Jeff Anderson
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SOLICITORS OF RECORD:
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Condo Law Office Ottawa, ON |
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada |
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