Date: 19990108
Docket: T-2159-96
BETWEEN:
KHALIL HASAN
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
TAXATION OF COSTS - REASONS
G.M. SMITH, TAXING OFFICER
[1] This is an assessment of the respondent's costs on a party-and-party basis.
[2] These proceedings were commenced by way of an Originating Notice of Motion filed September 30, 1996 to review and set aside a decision of the chairperson of an Appeal Board appointed pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, and seeking an order of prohibition to prevent that chairperson from continuing to preside over the hearing of the applicant's section 21 appeal.
[3] After several interlocutory steps, the originating motion was eventually heard at Toronto on June 2, 1998. The Court's Order was rendered shortly thereafter, on June 10, 1998, whereupon the application was dismissed with costs.
[4] The applicant launched an appeal against the Court's Order on September 8, 1998. The respondent's Bill of Costs was filed on October 8, 1998 with a request that it be assessed without the personal appearance of the parties and on the basis of the accompanying written submissions. An Amended Bill of Costs was filed on October 8, 1998 detailing the disbursements claimed by the respondent.
[5] The applicant is a layperson who has represented himself throughout these proceedings. In a letter dated November 12, 1998, Mr. Hasan raised a preliminary objection to the effect that this assessment is premature in view of his outstanding appeal. Mr. Hasan further requested that if it is decided to proceed with this assessment an oral hearing should be fixed.
[6] The applicant filed written representations addressing both his preliminary objection and the substance of the Bill itself. In his submissions, Mr. Hasan went on to argue as well that since the Rules in place prior to the current Federal Court Rules, 1998, SOR/98-106 (new Rules) provided that costs not be allowed in a judicial review proceeding except for special reasons, therefore none of the costs claimed by the respondent prior to the coming into force of the new Rules should be assessed.
[7] Counsel for the respondent replied in a letter dated November 24, 1998 that the outstanding appeal has no affect on this assessment, nor does it preclude the execution of the Court's Order. As for an oral hearing, counsel submitted that the respondent's Bill of Costs is simple and straightforward. A requirement to appear in person would only incur further unnecessary expense.
[8] I disagree, to an extent, with counsel's point that the outstanding appeal has no effect on the assessment. A challenge to a higher court bears the obvious potential of varying, or even reversing, the lower court's finding of costs. Parties are therefore encouraged to avoid the possibility of undue costs, not only to the parties themselves but also to the court, which may ensue from requesting assessments at each and every occasion in a proceeding or with complete disregard for future potential events. That having been said, I nevertheless appreciate that the existence of an appeal does not, of and by itself, bode a necessarily ominous fate for the decision being challenged. I note also in the present case that a stay of this Court's judgment has neither been ordered nor even applied for by the applicant. At the end of the day, a valid Court Order is in effect and I am bound by its instruction and the Rules of this Court that costs awarded be assessed on the request of the party.
[9] As to the applicant's request for an oral hearing, I agree as well with the respondent that, in the circumstances of this particular assessment, an oral hearing is not necessary. The total of the costs claimed by the respondent edges only slightly above $2,000 and represents only eight disbursements, five of which relate to service of documents, and three items for services of counsel. The applicant has had ample opportunity since late October 1998 to address those items and in fact did so in his volume of written representations filed on November 12, 1998. I note further the applicant's comment in his letter of that same date which submits "there is no need for the oral hearing if the Bill of Costs is significantly reduced."
[10] Having reviewed fully the proceedings that have taken place before this Court since this litigation first began almost three years ago and having examined closely the Bill of Costs filed by the respondent, I am convinced that the respondent has already reduced her Bill significantly from that which could have been requested. The Bill is quite reasonable. The counsel fees claimed by the respondent reveal no "profit", as has been alleged by the applicant, and they are in any event well within the parameters of the Court's Tariff.
[11] As for Mr. Hasan's objection regarding the matter of costs prior to the new Rules, I can only but agree again with the respondent that the Court has full discretionary power over the matter of costs. I am without authority to either vary or set aside that ruling.
[12] Accordingly, I will assess the services of counsel as claimed by the respondent, with the one exception of reducing to 4 units the item for attending cross-examinations. Mr. Hasan has pointed out that the cross-examination of K. Plouffe took 1 hour rather than the 1.5 hours indicated in the Bill. The disbursements claimed are reasonable as well and have been fully established by the respondent.
[13] The respondent's Bill of Costs is assessed at $1,400 for fees and $638.44 for disbursements. A Certificate of Assessment will issue in the total amount of $2,038.44.
Sgd. (Gregory M. Smith)
Gregory M. Smith
Assessment Officer
Ottawa, Ontario
January 8, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
COURT FILE NO.: T-2159-96
BETWEEN:
| KHALIL HASAN |
Applicant
| - and - |
| THE ATTORNEY GENERAL OF CANADA |
| Respondent |
TAXATION ON CONSENT WITHOUT PERSONAL APPEARANCE OF PARTIES
TAXATION OF COSTS - REASONS BY GREGORY M. SMITH, ASSESSMENT OFFICER
DATE OF REASONS: January 8, 1999
APPEARANCES:
| Khalil Hasan for the Applicant (Himself) |
Kathryn Hucal for the Respondent
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario for the Respondent