2018 FC, 2018 FC 1209

Date: 20181130 Docket: T-2299-14 Citation: 2018 FC 1209 BETWEEN: FRANK KIM Plaintiff and HER MAJESTY THE QUEEN Defendant ASSESSMENT OF COSTS - REASONS Bruce Preston Assessment Officer [ 1 ] By way of Judgment and Reasons dated September 21, 2017, the Court dismissed the action with costs in favour of the Defendant. [ 2 ] On July 24, 2018, the Defendant filed a Bill of Costs to be assessed. Further to the Direction of August 13, 2018, the parties have filed their affidavits and written submission on costs. [ 3 ] As a

preamble to the Defendant’s Bill of Costs, counsel for the Defendant seeks " “double costs for all proceedings that occurred after the Applicant’s refusal of the Respondent’s settlement offer dated February 24, 2016.ˮ " Counsel for the Defendant also argues: Double costs are also justified by the Applicant’s conduct that unnecessarily lengthened the duration of the proceedings by the taking of unnecessary steps in the proceedings, namely: the insistence of the Applicant to cross-examine a paralegal at trial on affidavit of facts that were not contested by the Applicant, the service and filing by the Applicant of many letters and requests to the Court on trivial issues, such as, the number of water bottles he would be allowed in the conference room for trial, the choice of the conference room for trial and a last minute motion to postpone the hearing. [ 4 ] By way of Written Representations filed August 1, 2018, the Plaintiff submits that he is indigent and serving a life sentence, which favours the Plaintiff paying little or no costs.

The Plaintiff also argues that the Defendant relied on a new defence based on section 69(2) of the Privacy Act , without further amendment to the Statement of Defence. The Plaintiff also contends that the Defendant caused delay with last minute motions to strike and to amend the Statement of Defence. The Plaintiff submits that the new section 69(2) of the Privacy Act defence contradicted the position of the " “live” " Amended Statement of Defence at paragraph 57. Further, the Plaintiff submits that the Defendant’s request for double costs is " “not reasonable, valid or based on the facts” " .

The Plaintiff argues that the rationale of the Defendant is unsubstantiated and even " “opposite to the truth” " or " “taken out of context” " . The Plaintiff contends that the Court had " “judicial economy” " in mind when it was ordered the Plaintiff and the witness to appear by video conference. The Plaintiff argues that the Defendant assembled another video conference room with a 14 inch monitor, many times smaller than the screens that the Court and counsel for the Defendant used when watching the witness and Plaintiff testify.

The Plaintiff submits that the Court found the room a marked departure and ordered that the main video conference room be used. The Plaintiff argues that the " “level of trickery and exaggeration” " of the Defendant amounts to an abuse of process and that the Plaintiff should not be ordered to pay costs. Finally, the Plaintiff submits that costs be ordered against the Defendant instead of the Plaintiff. [ 5 ] Although the Plaintiff’s Affidavit sworn July 26, 2018 contains many of the same assertions found in his Written Representations, it does contain some additional evidence.

Firstly, at paragraph 8 the Plaintiff asserts: If I had known that the Defendant was going to do this, I would have approached the case differently, including a possible acceptance of the Defendant’s settlement offer displayed in the Defendant’s Bill of Costs filed in the Court. [ 6 ] Also, with respect to his financial status, at paragraphs 15 through 19, the Plaintiff asserts that his direct family is unwilling and unable to help him pay for any legal costs, that he has not been in contact with other family members for 10 years, that he has only received $500.00 from his sister in the last three years and nothing from his mother and that his savings have dwindled to about $1,800.00 at the present time. [ 7 ] In Written Submissions filed August 28, 2018, counsel for the Defendant submits that costs are claimed at the high end of Column III of the Table to Tariff B as the Plaintiff’s action covered facts dating back to 2002 with regards to two federal institutions.

Counsel argues that this resulted in several interlocutory motions: a motion to strike, two motions to amend the Statement of Defence and a motion for an extension of time, all of which were contested. Counsel submits that, in addition, the Plaintiff sought an order that two witnesses be called at trial, even though subsection 299(1) of the Federal Courts Rules states that evidence in simplified actions are adduced by affidavit. Counsel for the Defendant contends that the Defendant offered to settle the action to avoid trial costs but the Plaintiff never responded to the offer.

Counsel submits that double costs are claimed after February 24, 2016 in accordance with subsections 400(3)(

e) and 420(1) and argues that the claim is justified as the Plaintiff refused a reasonable offer and presented motions which had no reasonable chance of success. Counsel for the Defendant also presents submission on the various Items and disbursements claimed. These submissions will be referred to, as necessary in reaching a decision concerning the Items and disbursements. Assessment

[8] The Plaintiff has submitted that that he should pay little or no costs considering that he is indigent and serving a life sentence. Asheld in Solosky v Canada, (FC), [1977] 1 FC 663, and confirmed in many subsequent decisions: …. in deciding whether costs should or should not be awarded against an unsuccessful plaintiff, neither the ability to pay northe difficulty of collection should be a deciding factor but, on the contrary, the awarding or refusal of costs should be basedon the merits of the case.

Unless special circumstances exist to justify an order to the contrary, costs should normally followthe event.

Therefore, I find that the Plaintiff’s ability to pay cannot be a consideration in this assessment of costs. [9] The Plaintiff has argued that the Defendant’s request for double costs is not "“reasonable, valid or based on the facts.”" In theDefendant’s letter dated February 23, 2016, located at Exhibit "“A”" to the Affidavit of Aldrich Dario Hernandez Martinez, sworn July19, 2018, counsel for the Defendant states: The present follows your settlement offer dated January 28, 2016, to which we regret to inform is wholly unsatisfactory toour client and is refused.

As stated in our defence, Correctional authorities implicated in the incidents raised in your statement of claim caused you noharm. Therefore, we are under no obligation to compensate you. This said, in following the principles of proportionality and economy of justice, we are prepared to offer you five hundreddollars ($500.00 CAD) in return for your discontinuance of your statement of claim, without costs. Please keep in mind that according to rule 400 of the Federal Courts Rules, if your case is dismissed the Court can grantcosts to the Defendant.

Therefore, I find that the Plaintiff’s ability to pay cannot be a consideration in this assessment of costs. [10] The relevant rules relating to offers to settle are Rule 419 and Rule 420 (1), (2)(

b) and (3), which state:

"419. Rules 420 and 421 apply, with suchmodifications as are necessary, to partiesbringing and defending counterclaims andthird party claims, to applicants andrespondents in an application and toappellants and respondents in an appeal. " "420. " "

(1) Unless otherwise ordered by the Courtand subject to subsection (3), where aplaintiff makes a written offer to settle andobtains a judgment as favourable or morefavourable than the terms of the offer tosettle, the plaintiff is entitled to party-and-party costs to the date of service of the offerand costs calculated at double that rate, butnot double disbursements, after that date. " "

(2) Unless otherwise ordered by the Courtand subject to subsection (3), where adefendant makes a written offer to settle, " "… " " (

b) if the plaintiff fails to obtain judgment,the defendant is entitled to party-and-partycosts to the date of the service of the offerand to costs calculated at double that rate, butnot double disbursements, from that date tothe date of judgment. " "(3) Subsections (1) and (2) do not applyunless the offer to settle " "(

a) is made at least 14 days before thecommencement of the hearing or trial; and " "(

b) is not withdrawn and does not expirebefore the commencement of the hearing ortrial. " "419."" Les règles 420 et 421 s’appliquent,avec les adaptations nécessaires, audemandeur et au défendeur dans unedemande, à l’appelant et à l’intimé dans unappel, ainsi qu’aux parties dans une demandereconventionnelle et une mise en cause. " "420. " "

(1) Sauf ordonnance contraire de la Cour etsous réserve du paragraphe (3), si ledemandeur fait au défendeur une offre écritede règlement, et que le jugement qu’il obtientest aussi avantageux ou plus avantageux queles conditions de l’offre, il a droit aux dépenspartie-partie jusqu’à la date de significationde l’offre et, par la suite, au double de cesdépens mais non au double des débours. " "

(2) Sauf ordonnance contraire de la Cour etsous réserve du paragraphe (3), si ledéfendeur fait au demandeur une offre écritede règlement, les dépens sont alloués de lafaçon suivante : " " … " "

b) si le demandeur n’a pas gain de cause lorsdu jugement, le défendeur a droit aux dépenspartie-partie jusqu’à la date de significationde l’offre et, par la suite et jusqu’à la date dujugement, au double de ces dépens mais nonau double des débours. " "

(3) Les paragraphes (1) et (2) nes’appliquent qu’à l’offre de règlement quirépond aux conditions suivantes : " "

a) elle est faite au moins 14 jours avant ledébut de l’audience ou de l’instruction; " "

b) elle n’est pas révoquée et n’expire pasavant le début de l’audience ou del’instruction. " [11] As the offer to settle was made more than 14 days before the commencement of the trial and was not withdrawn, I find that therewas an offer to settle presented by the Defendant. Further, as the Plaintiff was completely unsuccessful at trial, I find the provisions ofsubsection 420(2)(

b) applicable. [12] The test used to determine whether circumstances exist in order to trigger the doubling of costs is found in MK Plastics Corp vPlasticair Inc, 2007 FC 1029, at paragraph 39, which states: In order to trigger the double costs rule, an offer must be clear and unequivocal in that the opposite party need only decidewhether to accept or reject the offer (Apotex Inc. v. Syntex Pharmaceuticals, 2001 FCA 137 , [2001] FCA 137,[2001] F.C.J. No. 727 (QL), at para. 10). The offer must also contain an element of compromise (or incentive to accept)(Canadian Olympic Assn. v.

Olymel, Société en commandite, (FC), [2000] F.C.J. No. 1725 (QL), atpara. 10). The offer must also be presented in a timely fashion such that the benefit would still be derived from the oppositeparty if accepted (Sammammas Compania Maritima S.A. v. Netuno (the) Action in rem against the Ship "Netuno", [1995]F.C.J. No. 1442 (QL), at paras. 30 and 31). Finally, if accepted, the offer must bring the dispute between the parties to anend (TRW, supra, at p. 456).

Reviewing the offer in light of this test, I find that the offer to settle included in the letter dated February 23, 2016 was clear andunequivocal, that it was presented in a timely fashion and that it would have brought the dispute between the parties to an end. This beingthe situation, I find that the determination as to whether the doubling of the Defendant’s costs is triggered by the offer rests on whetherthe offer contained an element of compromise or incentive to accept.

In Canadian Olympic Association (supra), at paragraph 12, theCourt held that an offer which amounts to capitulation does not trigger the doubling of costs. Further, in Apotex (supra), at paragraph 32,the Court held: …In order to be acceptable, Apotex' offer to settle should have combined more than the mere acknowledgement ofinfringement.

Significantly, the offer to settle did not contain any element of compensation or even any reference to theprejudice caused by the infringement such as to incite Sanofi to cross the settlement bridge and settle the dispute. [13] Although the above decision was overturned on its merits, I still find the comments concerning costs helpful. From the above, it

appears that an element of compromise could contain an element of compensation or monetary incentive as well as some reference to theprejudice caused by the infringement or perhaps, put another way, acknowledgement of responsibility.

It also appears that thisacknowledgment of responsibility may be considered in conjunction with or separately from any element of compensation which may beincluded in an offer to settle. [14] Concerning monetary incentive to settle, in Culhane v ATP Aero Training Products Inc, 2004 FC 1667, at paragraph 6, the Courtheld: The offer is criticized as not representing a compromise, a factor which has been mentioned in some of the case law. Therule does not specifically state that compromise is a necessary element.

In any event, the forbearance of future costs in thiscase did represent, in my view, a considerable compromise. This point was noted by Mr. Stinson in the following words: The Defendants were not prepared to surrender any part of their position, but their removal of costs in the second February23, 2001offer might be seen by some as compromise of some consequence, depending on one's opinion of the generosity ofthe partial indemnity permitted by the Tariff. That is exactly how I see it. A "slackening of costs" is in itself "an ingredient of compromise" as noted by Blais J. in KirganHolding S.A. v.

Ship Panamax Leader (2003), 2003 FCT 80 , 227 F.T.R 200. It is important to note that the "“slackening of costs”", which is an ingredient of compromise, relates to "“the forbearance of futurecosts”" as well as the costs already incurred.

Further, although it appears that a "“slackening of costs”" is an "“ingredient ofcompromise”", on its own, it may not be determinative of the “" triggering”" of a doubling of costs. [15] From the above analysis, I find that an element of compromise may include, compensation or monetary incentive,acknowledgement of responsibility and/or, a slackening of costs but does not necessarily need to include all three. It is important to notethat not all compromise must be monetary in nature.

However, an offer that amounts to capitulation does not amount to an element ofcompromise and does not trigger a doubling of costs. [16] The within action relates to documents placed on the Plaintiff’s Case Management file. Commencing at paragraph 2 of theJudgment and Reasons, the Court states: [2] .… In late September and early October 2002, copies of two fax communications sent to Mr. Kim by lawyers wereplaced on his Case Management file. Two months later, in late November 2002, a copy of a written complaint addressed byMr. Kim to the Office of the Correctional Investigator was shared by Mr.

Kim’s Institutional Parole Officer (IPO) with otherstaff members and placed on his CM file. Mr. Kim discovered these facts in May 2011, after requesting and receiving acomplete copy of his CM file. [3] Mr. Kim considers that these documents are privileged and that they were improperly shared and placed on his CM file.In 2011, he filed a complaint with Correctional Service Canada (CSC), requesting both that the CSC’s “practice” of copyingprivileged information be stopped and monetary compensation. The CSC readily agreed that the documents were of a“privileged nature” and should not have been placed on the CM file.

Apologies were made, but monetary compensation wasrefused. The CSC noted that there were no indications of other similar occurrences. [4] Mr. Kim pursued the matter through three levels of grievances. In the process, the CSC initiated and completed aPrivacy Risk Assessment. Mr. Kim also filed a complaint with the Office of the Privacy Commissioner of Canada about thematter. The results were, throughout, substantially the same. [5] In this action, Mr. Kim seeks an award of general damages in the amount of $30,000 and punitive damages in theamount of $20,000 as compensation for these events.

For the reasons below, I find that no liability attaches to the defendantas a result of the communication of the documents at issue, and that in any event, Mr. Kim has not established that he hassuffered compensable damages from the conduct of CSC’s employees. Addressing the issue of compensation or monetary incentive, in the letter dated February 23, 2016, the Defendant offers the Plaintiff$500.00 in return for the discontinuance of the proceeding without costs. At first glance, this may not appear to be a reasonable offergiven that the original claim was for $50,000.00 in general and punitive damages.

However, when I consider that Mr. Kim had alreadyexhausted three levels of the grievance process and the results were substantially the same throughout, I find that the offer wasreasonable when it is considered that the offer including dispensing with the costs of a discontinuance. [17] Considering the acknowledgement of responsibility, the fact that the letter of offer suggests that no harm was caused to the Plaintiffand that there was no obligation for compensation appears to be the opposite of acknowledging responsibility.

However, when I considerparagraph 3 of the Judgment and Reasons, where the Court confirms that the Defendant acknowledged that the documents wereprivileged and apologized, I find that an acknowledgement of responsibility had occurred long before the offer to settle.

Under thesecircumstances, I find that an acknowledgment of responsibility is not required for a doubling of costs as responsibility had already beenacknowledged. [18] Lastly, concerning a slackening of costs, given my findings concerning compensation and responsibility, I find that an offer thatcosts be dispensed with on the discontinuance of the action is of sufficient slackening to justify a doubling of costs when thecompensation of $500.00 and the acknowledgement of responsibility are taken into account.

Therefore, for the above reasons, costs shallbe doubled from February 23, 2016, the date of the settlement offer. [19] Having thoroughly reviewed the costs submissions filed by the Plaintiff, I note that the Items and disbursements claimed are notaddressed. Given this, I will follow the reasons in Dahl v Canada, 2007 FC 192, [2007] FCJ No 256, at paragraph 2: Effectively, the absence of any relevant representations by the Plaintiff, which could assist me in identifying issues and

making a decision, leaves the bill of costs 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, i.e. those outside the authority of the judgment and the Tariff. [ 20 ] Concerning the present Bill of Costs, I have reviewed the Court file and note that the claims under Item 4 and Item 5 may not be allowed as they fall outside the authority of the Judgment and the Tariff. It has been held that absent an exercise of discretion by the Court, pursuant to Subsection 400(1), an assessment officer, who is not a member of the Court, has no jurisdiction to allow costs of a motion ( see: Canada v Uzoni , 2006 FCA 344 ).

Concerning the Defendant’s Motion to Strike dated November 30, 2015, in the Order dated January 27, 2016, the Court concluded that due to divided success no costs were awarded to either party. Similarly, concerning the Defendant’s motions dated May 6, 2016, May 27, 2016 and January 17, 2017, the subsequent Orders of the Court dated June 13, 2016 and February 7, 2017, ordered " “the whole without costs” " for all three motions. Therefore, as the Court has not awarded costs for any of these motions, no costs are allowed under Item 4 and Item 5.

Further, for the reasons outlined above, the amounts claimed for the photocopying of the Defendant’s Motion Records dated November 30, 2015, May 6, 2016, May 27, 2016 and January 17, 2017 are not allowed. " [ " " 21 " " ] " " Having regard to the remaining Items and disbursements claimed in the Defendant’s Bill of Costs, I have thoroughly reviewed the Court file, Judgment and Reasons, the Written Submissions of the Plaintiff and Defendant and the Defendant’s Bill of Costs and concluding that they remain substantially unopposed, I find that they may be allowed as claimed.

Therefore, the Items for assessable services are allowed for a total of $32,620.00 and disbursements are allowed at $2,594.73. " " [ " " 22 " " ] " " For the above Reasons, the Defendant’s Bill of Costs is assessed and allowed at $35,214.73. A Certificate of Assessment will be issued.

" "Bruce Preston" Assessment Officer Toronto, Ontario November 30, 2018 FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2299-14 STYLE OF CAUSE: FRANK KIM v HER MAJESTY THE QUEEN ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES PLACE OF ASSESSMENT: Toronto, Ontario REASONS FOR aSSESSMENT OF COSTS: Assessment Officer, Bruce Preston DATED: November 30, 2018 APPEARANCES : Frank Kim For The Plaintiff (ON HIS OWN BEHALF) Émilie Tremblay For The Defendant SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The Defendant