Prefontaine v. Canada

Prefontaine v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2005-07-28 Neutral citation 2005 FCA 266 File numbers A-175-01 Decision Content Date: 20050728 Docket: A-175-01 Citation: 2005 FCA 266 BETWEEN: ROSE PREFONTAINE and MAURICE PREFONTAINE Appellants - and - HER MAJESTY THE QUEEN Respondent ASSESSMENT OF COSTS - REASONS Charles E. Stinson Assessment Officer [1] The Appellant, Rose Prefontaine (hereafter "Rose Prefontaine"), sought judicial review of a decision of the Tax Court of Canada concerning the deductibility of certain monies claimed as business expenses. The Court dismissed her claim with costs. The status of the Appellant, Maurice Prefontaine (hereafter "Maurice Prefontaine"), to participate in this proceeding was an issue. The Court concluded that he did not have standing and dismissed his portion of this litigation with costs. I issued a timetable for written disposition of the Respondent's bill of costs in which I clearly indicated that each Appellant was given the opportunity to advance reply materials on the assessment of costs. The Registry sent said directions via a letter addressed to Maurice Prefontaine only, and as well to Rose Prefontaine via a separate letter addressed to her only. [2] Maurice Prefontaine's reply materials asserted that Rose Prefontaine did not have proper notice of the assessment of costs. I am aware, both from the perspective of an assessment officer and from that of a court administrator responsible for the Western offices of the courts over a number of years, of the manner in which the Appellants have generally conducted themselves and I simply observe that I do not believe for an instant that Rose Prefontaine was not immediately and fully aware of what was happening. However, more certainty may be needed in the case of lay litigants, which is in my opinion confirmed by subsequent events. First, the Respondent has put on the record proof of valid efforts to serve Rose Prefontaine with the assessment materials. Second, the Court issued, on April 20, 2005, a document entitled Instructions, in response to matters of the assessment of costs raised by Maurice Prefontaine, requiring both Appellants to comply with my directions, and in the circumstances, giving them an extension of time to file reply materials. The Registry sent these Instructions to both Appellants. Maurice Prefontaine again asserted that Rose Prefontaine did not have proper notice and the opportunity to reply. I disagree. Assessment [3] Maurice Prefontaine, prior to the Instructions document and in response to my timetable, advanced what he characterized as an approved bill of costs itemizing and claiming his costs totalling $35,000,000.00. The Instructions document specifically informed the Appellants that costs were awarded to the Crown. Maurice Prefontaine then advanced once again his bill of costs for $35,000,000.00 under cover of submissions laced with comments in the vein of "malicious", "corrupt government regime", "corrupt judicial appointments" and so on. Effectively, the absence of any relevant representations by the Appellants which could assist me in identifying issues and making a decision leaves the Respondent's bill unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant 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, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. [4] In the circumstances of this litigation, the claims for counsel fee items at varying points in the available ranges are generally arguable within the limits of the award of costs. However, certain things warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs. Specifically, the Respondent asks for the addition of item 26 (assessment of costs) at the maximum 6 units as a function of the need to take this matter to assessment. Item 26 is a global allowance which includes preparation and either appearance on the oral hearing of the assessment or written submissions as here addressing the consideration of the bill of costs itself. Item 26 is not intended as a penalty should litigants, such as Maurice Prefontaine here, choose to exercise their right to challenge a bill of costs via the assessment process. Here, the Respondent did have to carefully prepare materials supporting the bill of costs. However, the reply materials on the part of Maurice Prefontaine were so clearly misdirected in focus, and that, coupled with the absence of submissions on the part of Rose Prefontaine, means that little rebuttal effort, notwithstanding the repetitive nature of Maurice Prefontaine's materials, was required. I allow 3 units (not quite the minimum). The disbursement subtotal of $71.49 is modest, which I allow. [5] The Respondent's bill of costs, presented at $2,491.49, is assessed and allowed at $2,161.49. (Sgd.) "Charles E. Stinson" Assessment Officer Vancouver, BC July 28, 2005 FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-175-01 STYLE OF CAUSE: ROSE PREFONTAINE and MAURICE PREFONTAINE - and - HER MAJESTY THE QUEEN ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON DATED: July 28, 2005 SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada FOR RESPONDENT