Date: 20040402
Docket: T-49-03
Citation: 2004 FC 512
BETWEEN:
HENSLEY ORIJI
Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA,
Mme. MICHELINE DÉSJARDINS,
and Mme. MIRELLE DIOTTE
Defendants
Assessment Officer
[1] The Plaintiff, representing himself, has brought this action for certain heads of damages arising out of alleged irregularities in a staffing process in the federal public service. Further to the Plaintiff's motion, the Court ordered (October 27, 2003) production of certain documents, denied the balance of his motion, directed that this matter continue as a specially managed proceeding and awarded the Plaintiff his "out of pocket expenses on this motion". The Plaintiff presented his bill of costs at $1,138.57 (the corrected amount: the bill of costs shows a total of $1,131.72, but that is a function of errors in arithmetic which I have corrected on the bill of costs as assessed and signed) consisting of hours for time in preparing documents and disbursements for various services such as photocopies, tabs, binding and a taxi. He claimed 24 hours at $35.00 per hour consisting of research time, his assistant's time in drafting documents and miscellaneous secretarial time. The disbursements represented the balance of his claim.
[2] I convened a teleconference involving both sides and indicated that I felt that this assessment of costs should be addressed via written submissions. As well, I outlined for the Plaintiff the sort of materials required for an assessment of costs and noted for him that, should he wish to appeal my decision, jurisprudence such as The Queen v. Capitol Life Ins. Co., [1988] 2 C.T.C. 101 at 110 (F.C.A.) holds that supplementary evidence cannot be introduced on an application to review an assessment of costs. The Plaintiff asserted that it is easier for him to explain things orally and that he needs an assistant for written materials. I reminded him that an oral assessment of costs proceeds without the presence of a verbatim reporter and that proceeding by way of written submissions would ensure that his exact position becomes part of the record. The Plaintiff opted for written submissions and I issued the relevant timetable.
The Defendants' Position
[3] The Defendants noted that the Plaintiff's supporting affidavit does not have receipts attached nor does it provide supporting details further to the Plaintiff's expressed fear of "reprisal, vindictive acts, intimidations, and harassments" on the part of the Defendants. The Defendants argued that a self-represented litigant is still obliged under Tariff B1(4) to lead sufficient proof. In particular, his evidence fails to establish that the claims for paralegal and secretarial services represent relevant or necessary expenditures for this motion. The reference in the evidence to ongoing expenses for the action means that the amounts claimed in the bill of costs, in the absence of underlying details, could relate to matters other than this motion.
[4] The Defendants argued that the Court's restriction to costs for out of pocket expenses precludes any claims for paralegal and secretarial services. The Defendants argued that if I decide that something is allowable relative to the unproved disbursements, said allowance should be limited to the $149.60 initially claimed for photocopies, tabs and binders, but not the $79.70 added later for photocopies and a taxi used for service of documents. The Plaintiff's assertion of on-going delays in the progress of this action and his reference to a lump-sum award in his favour of $750.00 for another motion are irrelevant for the assessment of costs of this motion. The Defendants argued further to Rule 408(3) that nothing should be awarded to the Plaintiff under item 26 (assessment of costs) in these circumstances or, in the alternative, that he be allowed no more than $200.00.
The Plaintiff's Position
[5] The Plaintiff argued that the Defendants' delay of progress in the action is relevant. He argued that, given the absence of provisions for the circumstances of self-represented litigants, the Defendants have taken advantage of his increased need for paralegal, secretarial and research services. The Plaintiff asserted that his limited resources hamper his capacity to address this litigation and the $1,138.57 claimed is much less than the actual cost. He argued that the lump-sum award in his favour of $750.00 for another motion is indicative of the appropriate level of costs here. Secretarial costs, which are ordinarily considered to be part of an attorney's fees, should be allowed as a separate expense in the circumstances of a self-represented litigant. The Plaintiff asserted that disclosure of underlying details of his claims would lead to the reprisals, etc. described above and that the stress of this litigation has interfered with his capacity to maintain records of expenditures. The Plaintiff requested an additional $200.00 for the process of the assessment of costs. He argued that, in the alternative, I could refer this assessment of costs back to the Court to fix a lump sum or for further clarification and directions.
Assessment
[6] The Plaintiff's submissions concerning reprisals etc. are not worthy of comment. To the extent that his bill of costs includes indemnification for his own research time, that falls within the Rule 400(1) discretion of the Court and is beyond my jurisdiction: see Turner v. Canada, [2001] F.C.J. No. 250 (A.O.) affirmed at [2001] F.C.J. No. 1506 (F.C.T.D.). To the extent that his costs may include indemnification for the time of paralegal services in the nature of counsel work, it is well settled that the award of costs here equates to party and party indemnification and therefore the Plaintiff cannot claim, via a disbursement, what is essentially solicitor-client indemnification: see Bill of Costs and Assessment, Federal Court Practice - 2003 Update, September 19, 2003, The Continuing Legal Education Society of British Columbia. As well, the term "out of pocket" expenses in the scheme of costs precludes the claims for his own research time and for paralegals in the absence of a solicitor of record. Although I can appreciate the Plaintiff's submissions concerning secretarial services for the production of materials, the fact that, in my opinion, portions of his materials prepared for the assessment of costs were irrelevant induces me to believe that some of the hours claimed in the bill of costs relative to the motion in issue would be susceptible to a comparable inference. That the Plaintiff asserts that the Court, which is functus, could revisit the award further to my request reinforces that conclusion.
[7] The Defendants raise valid concerns. However, my view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (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. Here, I believe that the Plaintiff incurred real expenses and that a result of nil dollars on assessment would be absurd. I allow $260.00 inclusive of GST in the circumstances of this motion. The listing of items in Column III of Tariff B is for discrete services of counsel. Therefore, any allowance to this Plaintiff under item 26 is precluded both by the Court's order and in general by the scheme of costs in litigation.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
April 2, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-49-03
STYLE OF CAUSE: HENSLEY ORIJI
Plaintiff
- and -
HER MAJESTY THE QUEEN et al.
Defendants
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL
APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: April 2, 2004
SOLICITORS OF RECORD:
Morris Rosenberg for Defendant
Deputy Attorney General of Canada