Date: 20011019
Docket: A-154-00
Neutral Citation No.: 2001 FCA 318
BETWEEN:
GORDON E. SMITH
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Assessment Officer
[1] The Applicant, a self-represented litigant, presents his bill of costs further to a judgment allowing this judicial review with costs. The bill of costs contains $5,392.80 claimed under various fee items in Tariff B associated with the services of a solicitor, and $300.00 for disbursements. I directed that this matter be addressed by the service and filing of written materials.
The Applicant's Position
[2] The Applicant asserted that he had represented himself throughout proceedings in the Tax Court of Canada and the Federal Court of Appeal, that he prepared and filed all documents, and that he paid for all services. The Applicant argued that, as the hearings in both Courts were a result of the same assessments and there was considerable overlap of materials for those hearings, he opted, for the sake of simplicity, to put the costs for both Courts in a single bill of costs in this Court. The Applicant confirmed that his claim under item 14 for eight hours acting as his own counsel referred to the Tax Court hearing. The Applicant referred to an interlocutory decision of this Court awarding him costs of $200.00 payable forthwith in any event of the cause, objected to the Respondent's suggestion that the $200.00 be included in this bill of costs as an amount payable to the Applicant, and asserted that the Respondent has failed to obey an Order requiring immediate payment.
[3] The Applicant conceded that a self-represented litigant is not entitled to counsel fees, but argued that Rule 400(1) gives the Court "full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid". The Applicant asserted that, in the absence of a guideline in the Rules, he used Tariff B to establish a reasonable figure as compensation for his considerable time and effort. He asserted that the proposed figure was modest compared to the potential amount if he had had the resources to retain counsel. The Applicant argued that Lavigne v. Canada, (1998) 229 N.R. 205 (F.C.A.) at 206, para. [2], supports the legitimacy of his claim to an exercise of the Court's discretionary power under Rule 400(1), with particular regard to several factors under Rule 400(3), for compensation for his time.
[4] The Applicant's evidence is that he prepared copies of documents for both Courts using the photocopying equipment of a personal friend, thus precluding the necessity of any payment. The Applicant asserted that the commercial photocopy machines which he used did not issue receipts, and that the major photocopying costs related to documents submitted to the Respondent and to the "Federal Court Tax Court" [sic]. The Applicant stated that a commercial firm charged him approximately $63.00 for the copies and binding of his Applicant's Record in this Court. He argued that a total of $150.00 to produce 1,500 to 2,000 pages is a modest figure.
The Respondent's Position
[5] The Respondent relied on Enterprises A.B. Rimouski Inc. c. R., (2001) 262 N.R. 276 (F.C.A.) and Lavigne, supra, to argue that a self-represented litigant is not entitled to counsel fees. The Respondent argued that any costs associated with the Tax Court of Canada proceeding cannot be assessed in the bill of costs for the Federal Court of Appeal proceeding. The Respondent noted that a cheque for $200.00 relating to the interlocutory award of costs has been requisitioned and will be forwarded to the Applicant. The Respondent argued that an assessment officer cannot exercise the discretion reserved for the Court under Rule 400. The Respondent noted the evidence that most of the photocopying was done without cost to the Applicant. The Respondent argued further to Diversified Products Corp. v. Tye-Sil Corp., (1990) 41 F.T.R. 227 (F.C.T.D.) and Windsurfing Int. Inc. v. Bic Sports Inc., (1985) 6 C.P.R. (3d) 526 (F.C.T.D.) that nothing should be allowed for photocopying because the Applicant has not discharged the burden of proof regarding number of pages, relevance, necessity, reasonableness, receipts and whether the amount claimed is the actual cost.
Assessment
[6] I have read all materials in the record, but have summarized above only those relevant for disposition of this assessment. On February 22, 2001, in A-538-98, Fred Turner v. Queen, I considered Enterprises and Lavigne, supra, as well as other authorities, and disallowed claims for compensation for the time of a self-represented litigant under fee items in Tariff B. The Respondent's submissions objected to some, but not all, fee items claimed as compensation for the time of this self-represented litigant. Rule 409 permits an assessment officer to consider Rule 400(3) factors, but it does not mean, relative to Rules 405 and 407, the definition of assessment officer in Rule 2 and the constitution of the Court outlined in section 5 of the Federal Court Act, that an assessment officer can exercise the Rule 400(1) authority of the Court. The effect of Lavigne, supra, was to affirm a basic principle of costs: they are an indemnity for what was paid to conduct litigation and not what might have been earned, but for said litigation. In Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd. [1994] F.C.J. No. 2012, I concluded, at para. [10], that "the best way to administer the scheme of costs in litigation is to choose positive applications of its provisions as opposed to narrower and negative ones". However, I conclude it would be unlawful to allow anything for the Applicant's time, despite the Respondent's concessions, and therefore I disallow the $5,392.80 above.
[7] The bill of costs in Fred Turner, supra, included, as here, costs related to a Tax Court of Canada proceeding. I concluded there, as I do here, that any costs related to the Tax Court of Canada cannot be assessed as part of a Federal Court of Appeal bill of costs. On the record before me, that precludes the application fee and the witness fee in Tax Court of Canada ($50.00 each). It is unclear as to how much of the $150.00 claimed for photocopies is attributable to the Tax Court proceeding. Whether those photocopy costs were actually for the Federal Court of Appeal or the Tax Court of Canada, given that "Federal Court Tax Court" as an entity does not exist (it may be that the conjunction "and" is missing), my conclusions in Byers Transport v. Kosanovich [1996] F.C.J. No. 760 (T.D.) concerning costs as an indemnity would preclude anything for services that the Applicant received without cost to himself. Consistent with my rationale in Carlile v. The Queen, 97 D.T.C. 5284 and Local 4004, Airline Division of Canadian Union of Public Employees v. Air Canada on March 25, 1999 in T-323-98, I allow $70.00 for photocopies. I allow the $50.00 claimed as the filing fee for institution in this Court. The Applicant's Bill of Costs, presented at $5,692.80, is assessed and allowed at $120.00.
(Sgd.) "Charles E. Stinson
Assessment Officer
Vancouver, B.C.
October 19, 2001
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-154-00
STYLE OF CAUSE:Gordon E. Smith v. Her Majesty the Queen
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS BY: CHARLES E. STINSON
DATED: October 19, 2001
SOLICITOR FOR THE RECORD
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
Ottawa, Ontario