Evidence of Actual Costs Incurred or Specific Directions from the Federal Court is Required in Assessing Costs
See You In – Canadian Athletes Fund Corporation v. Canadian Olympic Committee, 2009 FC 908 (Bruce Preston, Assessment Officer)

September 14, 2009

Terrance J. McManus for the Applicant, See You In – Canadian Athletes Fund Corporation
Kenneth D. McKay for the Respondent, Canadian Olympic Committee

Following the Reasons for Judgment and Judgment dated April 18, 2007, wherein the Court granted the Applicant’s judicial review with costs on a party and party basis, the Applicant filed its Bill of Costs in the amount of $18,343.47 in requesting an assessment.  The Respondent argued that the assessed costs should be reduced by 50% or that more of the costs be assessed in view of the restricted award by the Court. 

While the Assessment Officer denied the Respondent’s request for a reduction of costs on the basis that: (a) the decision of the Court did not specifically provide for a reduction or proration of costs; and (b) that without a clear direction, the Assessment Officer was without jurisdiction to reduce the costs as assessed; the Assessment Officer reduced the quantum of the Bill of Costs to $10,092.40.

In doing so, the Assessment Officer applied Starlight v. Canada, [2001] F.C.J. No. 1376 as the basis to assess each item claimed in the Bill of Costs on its own merits in order to determine the total unit value to be allowed under Tariff B of the Federal Courts Rules.  In doing so, the Assessment Officer reduced the total number of units allowed, largely on the basis that the affidavit filed as part of the Application Record covered very general factual issues, that the Applicant’s Record was largely comprised of photocopies of documents from the Trade-marks Office, that the Memorandum of Fact and Law did not address overly technical issues, and that motions for extensions of time are generally not complicated.

Of note, the Assessment Officer did not allow the claim made under Item 24 (travel by counsel to attend a trial, hearing, motion, examination or other analogous procedure) on the basis that Item 24 provides that this assessable service is “at the discretion of the Court”. Since the Court did not specifically award fees for travel by counsel in its decision, the Assessment Officer relied on Balisky v. Canada (Minister of Natural Resources) 2004 FCA 123 to deny the claim made under Item 24.

Similarly, the Assessment Officer cited Métis National Council of Women v. The Attorney General of Canada, [2007] FC 961 at paragraph 21, in order to deny the claim for disbursements regarding travel expenses. In doing so, the Assessment Officer held that “[a]s some of the disbursements are not supported by adequate proof, it is not possible to determine what the disbursements relate to…without receipts for airfare or hotel accommodation it is difficult to determine whether a disbursement was reasonable and necessary.” The same rationale was applied in reducing the amount of disbursements claimed with respect to the transcript and photocopies.

By: Hafeez Rupani, Borden Ladner Gervais LLP