Canada ( Minister of Employment and Immigration ) v. Chan
91-A-3828
Stinson T.O.
3/11/92
20 pp.
Taxation of costs on solicitor and client basis pursuant to Immigration Act, s. 84 -- Applicant filing notice of motion for leave to appeal Immigration Appeal Division decision -- Subsequently filing notice of motion for extension of time to file supporting material -- Withdrawing motion for leave to appeal by letter -- Taxing officer lacking jurisdiction to make direction under s. 84 -- S. 84 designed to discourage Minister from making applications for leave to appeal by penalizing Minister in solicitor-client costs -- Pursuant to motion under RR. 319, 324 for directions under s. 84, Motions Judge to refer matter to taxing officer for taxation -- Bill of costs presented at $1,297.81 and allowed at $1,261.73 -- S. 84 neither prescription for costs as between solicitor and own client nor contemplating arbitrary or global limit without regard to accumulative charges dictated by particular circumstances -- Charges for solicitors' fees vary according to market forces and experience of counsel -- Act and Federal Court Rules not restricting by reason of hourly rate litigant's choice of solicitor and therefore not implicitly suggesting some global limit for costs -- Also not operating as licence for unlimited indemnification -- Word processing appearing as separate item -- To be eligible for taxation, must meet test of both relevance and reasonableness relative to critical path of litigation, being continuum of actual steps requisite for success in litigation -- Steps taken outside critical path may be indemnified between parties at solicitor-client level -- Although presentation of word processing charges as separate from solicitors' fees departure from traditional format of bill of costs, merely attempt to delineate for client actual charge associated with professional expertise of lawyer as opposed to actual charge associated with mechanics of delivery -- Law firm not establishing precedent with regard to overhead should be changed, but taxing officers should function with regard to reality of practice of law -- Bill examined to determine whether qualifies for indemnification as between parties -- If qualifying, still required to meet test of reasonableness or excessiveness -- If effect of word processing charges to create excessive charge as measured against complexity of issues and effort required for result obtained, then they or some portion of solicitors' fees would have to be reduced -- Word processing charges qualifying for consideration because associated with provision of professional service and respondent liable to pay -- Basis for such charges laid in retainer letter -- Should not open door for breakout of overhead services because said services still must meet test of reasonable measure to achieve end result, i.e. equivalent dollars should result regardless of mechanics of bill if no dispute as to need for particular service -- If charge for overhead service exists as some factor of total solicitors' hours charged, dollars in total for solicitor-client account must be equivalent in both instances -- S. 84(1) referring to "all costs of and incident to the application for leave to appeal" -- Providing for: (1) "all costs of . . . the application for leave to appeal . . ." i.e. those associated with substantive issues and interlocutory matters designed to prepare file for final disposition and matters after judgment such as costs; (2) "all costs . . . incident to the application for leave to appeal" i.e. to ensure that costs such as those associated with interlocutory matters and matters after judgment or in absence of final judgment and susceptible to attracting this sort of objection will be indemnified -- S. 84(1) to provide widest, as opposed to most narrow, net for litigants -- 5.3 hours of solicitors' fees (apart from 2.9 hours for study and analysis) consisting of 11 items ranging from .1 to .5 hours -- Descriptions and associated times not suggesting excessiveness -- Firm specialized in industrial property -- Although immigration specialists might have proceeded differently, variation in cost negligible -- Litigants free to choose solicitors, but those choices must bear standards set by examination at taxation -- 2.9 hours spent for study and analysis day after instituting motion for leave to appeal filed minimal -- Bill of costs for preparation for taxation allowed as presented at $1,752.22 -- That higher than normal due to issue of jurisdiction -- Open to respondent to proceed according to circumstances of her matter and in absence of case law on point -- Should not be penalized in absence of extravagant conduct of litigation -- Immigration Act, R.S.C., 1985, c. I-2, ss. 83 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19), 84 -- Federal Court Immigration Rules, SOR/89-26, R. 9(3)