T-159-90
Clifford Olson (Plaintiff)
v.
Her Majesty the Queen in Right of Canada
(Defendant)
INDEXED AS: OLSON V. CANADA (T.D.)
Trial Division, Smith T.O.—Ottawa, December
11, 1990.
Practice — Costs — Plaintiff a convict unrepresented by
counsel — Statement of claim struck with costs — Bill of
costs claiming maximum amounts allowable under Tariff B to
deter future vexatious proceedings — Plaintiff having refiled
statement of claim struck in earlier proceeding — No reference
to deterrence in R. 346 (1.1), prescribing factors for consider
ation by taxing officer in determining quantum — R. 344(1)
giving Court full discretionary power over payment of costs —
Costs not imposed as punishment on party ordered to pay
them — Review of cases holding taxing officer to remain
neutral in absence of opposing party — Role of taxing officer
in absence of opposing party extended by 1987 amendment to
Tariff importing range of costs into assessment process —
Previously determined whether items authorized by Tariff —
Now required to determine degree to which costs awarded
should be indemnified — Not merely independent arbiter of
disputes over costs but assessor of costs, right to which estab
lished elsewhere — Assessment process governed by R. 346(1)
providing costs to be taxed in accordance with Tariff B —
Proceedings not warranting maximum under Tariff.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 324, 344(1)
(as am. by SOR/87-221, s. 2), 346(1) (as am. idem, s.
3), (1.1) (as am. idem), Tariff B (as am. idem, s. 8).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kenney v. Cape York (The), [1989] 3 F.C. 35; (1989),
F.T.R. 44 (T.D.).
CONSIDERED:
British Columbia Forest Products Limited v. The Minis
ter of Industry, Trade and Commerce, Stinson T.O.,
T-5310-81, taxation dated 18/10/82, not reported; Sea-
West Engines Ltd. v. M.V. Quala Nimm, Stinson T.O.,
T-6096-80, taxation dated 24/6/83, not reported; Adam's
Underground Installation Ltd. v. Armadillo Holdings
Ltd., Briand T.O., T-7541-80, 30/9/83, not reported.
APPEARANCES:
No one appearing for plaintiff.
COUNSEL:
John B. Edmond for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
defendant.
The following are the reasons for taxation ren
dered in English by
SMITH T.O.: This matter was commenced by
way of a statement of claim which was struck out
by order of the Court dated March 8, 1990 with
costs to the defendant. The plaintiff in this action
is unrepresented by legal counsel and is currently
being held under incarceration. The defendant's
bill of costs was therefore presented for taxation,
on a party-and-party basis, in writing pursuant to
Rule 324 [Federal Court Rules, C.R.C., c. 663],
along with bills of costs in three other actions
involving the same plaintiff (Court files no. T-996-
89, T-1968-89, T-267-90).
On November 9, 1990 the affidavit of Darlene
Barry was filed purporting service, by registered
mail, of the defendant's bill of costs and covering
letter upon the plaintiff on August 20, 1990.
Although a single letter was subsequently received
from the plaintiff on August 31, 1990 requesting
copies of the Court's order striking out the state
ment of claim herein, no other reply, correspond
ence or representations have been received to date
on behalf of the plaintiff in relation to this matter.
The defendant's bill of costs claims the max
imum amounts allowable with respect to three
items under Tariff B [as am. by SOR/87-221, s.
8]:
1. (1) ...
(a) for all services in an action in the Trial Division prior to
and including preparation and filing of pleadings ... ;
(I) for preparation of any motion in writing where there is
no court appearance ... ;
(j) for services after judgment ... .
In the defendant's written representations coun
sel has indicated that maximum amounts are being
claimed in view of the fact that the plaintiff in this
action, and in Court file no. T-267-90 (same style
of cause), has essentially refiled a statement of
claim that had been struck out by the Court in an
earlier proceeding (Olson v. Her Majesty the
Queen, Court file no. T-1968-89). Recovery of the
costs now sought, counsel submitted, would serve
as a severe deterrent against such vexatious pro
ceedings as these in the future.
As to the Tariff items being requested by the
defendant, I am satisfied of their authority and
would allow them on that basis. As to the issue of
the quantum being claimed however, I would
express some concern for the following reasons.
Firstly, I have noted that the amounts requested
simultaneously in the earlier proceedings struck
out (Court file no. T-1968-89) are at a rate consid
erably less (40%) than the maximum allowable
under the Tariff. It is also apparent, as might
logically be expected, that the proceedings filed in
the present action were no more extensive than
those of the earlier proceedings struck out. And
lastly, with respect to creating a deterrence, the
taxing officer, when determining the quantum of
costs to be allowed, is required to consider the
factors prescribed in Rule 346(1.1) [as am. idem,
s. 3], none of which include, at least in so far as
the Court has not so directed, any reference to an
element of deterrence against future litigation:
Rule 346. ..
(1.1) In taxing and determining the quantum of costs to be
allowed pursuant to Tariff B, the taxing officer shall consider
(a) the amounts claimed and the amounts recovered;
(b) the importance of the issues;
(c) the complexity of the issues;
(d) the volume of work; and
(e) any other matter that the Court has directed the taxing
officer to consider. [The underlining is mine.]
While I remain cautious in scrutinizing the
defendant's bill so closely as to create a perception
of substituting the taxing officer's role for that
which might otherwise be undertaken by an
adverse party, I remain equally conscious of the
limited discretionary latitude imposed on a taxing
officer by the provisions of the above cited Rule
346(1.1).
In past taxations in this Court where an oppos
ing party was absent taxing officers have expressed
similar caution as I do here. In the case of British
Columbia Forest Products Limited v. Minister of
Industry, Trade and Commerce, Court file no.
T-5310-81, Taxing Officer Stinson commented on
October 18, 1982:
However, I do not think it proper that a party who fails to
appear before a taxing officer should benefit by having the
taxing officer remove himself from his position as an
independent assessor and assume an adversary role in chal
lenging given items in a Bill of Costs.
In a subsequent decision dated June 24, 1983,
Sea-West Engines Ltd. v. M.V. Quala Nirnrn,
Court file no. T-6096-80, Taxing Officer Stinson
expanded on his earlier view by saying [at pages
1-2]:
As I have noted in previous taxations, a party who fails to
appear on taxation should not benefit by having the taxing
officer abdicate his neutral position and assume an adversarial
role. I temper this by noting that I feel that I am not prevented
from asking for clarification (before putting my signature to
the Certificate of Taxation) if the form or some aspect of a
given item is puzzling.
In Adam's Underground Installation Ltd. v.
Armadillo Holdings Ltd., Federal Court file no.
T-7541-80, on September 30, 1983, Taxing Officer
Briand, in referring to the Sea-West Engines taxa
tion, later added:
I am in agreement with Mr. Stinson and I would state
further that in my opinion the non-appearance of opposing
counsel does not permit me to allow items not properly
taxable under Tariff "B", nor amounts greater than those set
out in the Tariff.
That view has since prevailed rather consistently
in the taxation of costs by officers in this Court.
However with the amendment of the Tariff in
1987 (SOR/87-221, April 2, 1987), whereupon the
factor of a range, or "quantum", of costs was
imported into the assessment process, the role of
the taxing officer in the absence of an opposing
party has become somewhat extended. Whereas
before, the assessment of party-and-party costs
claimed under Tariff "B" was concerned, for the
most part, simply with whether or not items were
authorized by the Tariff, an assessment under the
new Tariff advances upon a broader purview by
also determining, within specified parameters (i.e.,
Rule 346(1.1)), the degree to which the costs
awarded should be indemnified.
As I therefore understand the role of a taxing
officer, it is not merely to act as an independent
arbiter of disputes between the parties over costs.
It is a role which functions principally in the
broader sense of assessing costs, the right of which
have been established elsewhere (i.e., by exercise
of the Court's discretion pursuant to Rule 344(1)
[as am. idem, s. 2] ).
As to the assessment process itself, it is one
which is governed in this Court by Rule 346(1) [as
am. idem, s. 3]:
Rule 346. (1) Unless otherwise ordered by and subject to any
directions from the Court, all costs between party and party
shall be taxed in accordance with Tariff B.
It is Tariff B that provides for the range of
amounts allowable with respect to specific items.
The criteria for determining that range, or "quan-
tum", is then imposed by the provisions of Rule
346(1.1).
So it is that a taxing officer in this Court is
guided not only by the general principles that have
been established in relation to the process of taxing
costs, but also by the boundaries of authority
created by the provisions of the Court's Rules. It
then follows, in my opinion, that where, as in the
present case, no order or other direction of the
Court exists as might remove those constraints, the
taxing officer is so bound. And furthermore where,
as again is the situation here, there exists no
ostensible challenge by the opposing party, which
neither implies concession to the amounts claimed
nor disapproval, but merely no position, those
same constraints, inclusive of the factors set out in
Rule 346(1.1), still apply and the taxing officer
must then determine, giving appropriate weight in
the particular circumstances of the absent party,
the degree to which those factors are to be
accounted in the assessment of the costs claimed.
I would therefore add to the comments para
phrased earlier by Taxing Officers Stinson and
Briand by stating that in my opinion the non-
appearance of opposing counsel, or the opposing
party itself as the case may be, neither permits me
to allow amounts greater than those set out in
Tariff "B", nor amounts which, given consider
ation of the criteria prescribed in Rule 346(1.1),
are clearly unreasonable.
I find the defendant's bill of costs herein to be
just such a case. While I appreciate that the
various documents and papers comprising the
Court record itself will not stand alone in fully
establishing the basis for determining factors such
as complexity, volume of work and importance of
the issues with relation to the particular litigation
at bar, I remain nevertheless unsatisfied that the
proceedings in the instant case warrant the max
imum of costs allowable under the Tariff. I have
considered as well the submissions of counsel as to
creating a deterrent against future vexatious pro
ceedings, a factor which I feel obliged to ignore
not only in view of the limitations of authority
prescribed by Rule 344(1), that the Court has
"full discretionary power over payment of the costs
of all parties", but also in view of the comments
made by Mr. Justice McNair of this Court in the
case of Kenney v. Cape York (The), [1989] 3 F.C.
35, which read as follows [at page 44]:
The fundamental principle of costs as between party and
party is that they are given by the law as an indemnity to the
person entitled to them; they are not imposed as a punish
ment on the party who pays them, nor given as a bonus to the
party who receives them: see Ryan v. McGregor, [ 1926] 1
D.L.R. 476 (Ont. C.A.) per Middleton J.A., at page 477.
Having concluded as I have that the costs
claimed by the defendant herein are unreasonable
in the circumstances of this action, I will therefore
tax 40% off the amounts presented by the
defendant:
Tariff Item Amount
1(1)(a) $150
1(1)(f) $ 45
1(1)(j) $ 75
The defendant's bill of costs will therefore be
taxed and is allowed in the total sum of $270.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.