Date: 20040726

Docket: A-429-01

Citation: 2004 FCA 270

BETWEEN:

                                                HEM RAMLALL, BA, MD, DOHS

                                                                                                                                            Appellant

                                                                           and

A.G. (CANADIAN HUMAN RIGHTS COMMISSION)

ASHA CHAKKALAKAL

LIBBY ACKERMANN

THE EMPLOYMENT RESOURCE CENTRE (ERC)

SKILLS FOR CHANGE & JEWISH VOCATIONAL SERVICES (SFC/JVS)

HUMAN RESOURCES DEVELOPMENT CANADA (HRDC)

Respondents

                                            ASSESSMENT OF COSTS - REASONS

PAUL G. C. ROBINSON                                          

ASSESSMENT OFFICER

[1]                This is an assessment of costs pursuant to a judgment dated December 10, 2003, by the Federal Court of Appeal dismissing this appeal with costs to the Respondent Attorney General. The appeal was from a decision of Mr. Justice P. Rouleau, dated June 22, 2001, dismissing the application for judicial review in the Federal Court.

[2]         After receiving a request for an assessment appointment, a letter was issued setting a timetable for written submissions. The Appellant did not respond, within the time frames allowed, to the Respondent's Bill of Costs and to the supporting material presented for assessment. The Federal Court Rules, 1998 do not contemplate a litigant, having notice of an assessment of costs and not participating, benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a Bill of Costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of a judgment and tariff.

[3]          In the absence of a response from the Appellant, I examined the items claimed in the Respondent's Bill of Costs to ensure they were within the parameters of the Federal Court Rules, 1998 and Tariff B.                        

[4]          Under Item 19 (Memorandum of Fact and Law), the Respondent has requested 7 units which is the upper end of column III Tariff B. I note the Respondents' explanation in the Written Submissions for Assessment of Costs:

...Notwithstanding that, the only relevant basis for this appeal was the Appellants [sic] allegation that the learned applications judge erred in fact and law in reaching his decision. Counsel for the respondent Attorney General of Canada was required to address all of the grounds of appeal advanced, and thus spent unnecessary time and resources responding to issues not relevant to the determination of the appeal.

The explanation for the requested 7 units ($770.00) for Item 19 appears reasonable and will be allowed.

[5]         Under Item 22 (counsel fee on hearing of appeal), the Respondents have requested 3.5 units and multiplied that number by 4 hours. I rely on Rule 407 of the Federal Court Rules, 1998:

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.

I note that column III allows 2-3 units for this assessable service. There is no Court order allowing an increase for this particular assessable service, therefore, I reduce this item requested to 3 units. In addition, I note the hearing of this matter took approximately 2 hours and 8 minutes as recorded in the Court Registrar's abstract but the Respondent is claiming 4 hours. I rely on the reasons of Taxing Officer Charles E. Stinson in Grace M. Carlile v. Her Majesty the Queen, [1997] 97 D.T.C. 5287.

...Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. ...

Further, Phipson on Evidence, Fourteenth Edition (London: Sweet and Maxwell, 1990) at page 78, paragraph 4-38 states that the " standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars on the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donation of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd ...... Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred....

Taking into account Rule 407 and the reasons above, I allow Item 22 at 3 units times 4 hours for a total of 12 units ($1,320.00).

[6]       This assessment of the Bill of Costs went by way of written submissions. It is my respectful opinion they were quite simple in nature and as mentioned above, uncontested. I therefore reduce Item 26 (assessment of costs) to 2 units ($220.00).

[7]       The Respondent's counsel is claiming disbursements in the amount of $541.59 and has provided proof of these expenditures in the form of invoice photocopies attached to the Bill of Costs. The amount of $541.59 for disbursements is allowed.        

[8)       The Bill of Costs in A-429-02 is assessed and allowed in the amount of $2,851.59 which includes the assessable services and disbursements. A certificate is issued in this proceeding for $2,851.59.                  

   "Paul Robinson"

                                                                             Paul G.C. Robinson            

Assessment Officer

Toronto, Ontario

July 26, 2004

                          FEDERAL COURT OF APPEAL

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  A-429-01

STYLE OF CAUSE: HEM RAMLALL, BA, MD, DOHS

Appellant

and

A.G. (CANADIAN HUMAN RIGHTS COMMISSION)

ASHA CHAKKALAKAL         LIBBY ACKERMANN

THE EMPLOYMENT RESOURCE CENTRE (ERC)

SKILLS FOR CHANGE & JEWISH VOCATIONAL SERVICES (SFC/JVS)

HUMAN RESOURCES DEVELOPMENT CANADA (HRDC)

Respondents

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

ASSESSMENT OF COSTS -

REASONS BY:         PAUL G.C. ROBINSON

DATED:                     JULY 26, 2004

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Per: Natalie Henein                                          

Toronto, Ontario                                              FOR THE RESPONDENTS