JOHN ANTHONY FRANCHI Applicant v. THE ATTORNEY GENERAL OF, 2011 FC 922

Federal Court Cour fédérale Date: 20110722 Docket: T-662-10 Citation: 2011 FC 922 Toronto , Ontario, July 22, 2011 BETWEEN: JOHN ANTHONY FRANCHI Applicant and THE ATTORNEY GENERAL OF CANADA AND NATIONAL PAROLE BOARD Respondents REASONS FOR ASSESSMENT OF COSTS Bruce Preston Assessment Officer [ 1 ] By way of judgment dated April 14, 2011, the Federal Court of Appeal allowed the appeal of the Attorney General of Canada and National Parole Board (A-483-10) and set aside the decision of the Federal Court, dismissed the application for judicial review and awarded costs in both the Federal Court of Appeal and Federal Court. [ 2 ] On May 27, 2011 the Respondents filed their Bill of Costs together with an Affidavit of Diane Dyke, Costs Submissions and a letter requesting an assessment of their Bill of Costs. [ 3 ] Having determined that this was an assessment which was suitable to proceed by way of written submission, on May 10, 2011, a direction was issued setting the time limits for the filing of material. [ 4 ] On June 20, 2011 the Applicant (Mr.

Franchi) filed Costs Submissions on file A-483-10. In those submissions Mr. Franchi submits:

1. The federal Court of Appeal allowed this appeal, set aside the decision of the Federal Court and dismissed the application for judicial review, with costs; 2. The Respondent was self-represented on the appeal. The Appellants’ Bill of Costs and disbursements for the appeal are reasonable and appropriate; 3. The Respondent was represented by John Hill, Barrister and Solicitor on the application for judicial review. Mr. Hill was retained on a legal aid certificate. The Respondent defers to the assessment of Mr.

Hill with respect to the reasonableness and appropriateness of the Appellants’ (then Respondents’) Bill of Costs and disbursement regarding that initial action . ( Emphasis added ) [ 5 ] On June 30, 2011, counsel for the Respondents submitted a letter indicating that the Respondents did not intend to make any reply submissions. Attached to the letter was a letter dated June 24, 2011 from Mr. Hill, former counsel for Mr. Franchi. In his letter, Mr. Hill submits: “…..I am not retained to do any work beyond the appearance on argument at Federal Court when this matter was originally argued.

The legal aid certificate that authorized my work is now closed and final billed. To make formal submissions on this matter would put me in breach of my obligation to my errors and omissions insurer since I would effectively be taking on a new retainer albeit without compensation.” [ 6 ] The above submissions from Mr. Franchi and his former solicitor result in an absence of relevant representations as to costs. In Reginald R. Dahl v.

HMQ 2007 FC 192 at paragraph 2 , the Assessment Officer stated: “….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.” [ 7 ] Having reviewed the decision of the Federal Court of Appeal, the Bill of Costs, affidavit in support and Costs Submissions of the Respondent, and taking into account the scant submissions of Mr. Franchi and the letter from Mr. Franchi’s former counsel (Mr. Hill), I find the costs of the Respondents to be reasonable and allow them as presented. [ 8 ] For the above reasons, the Respondents’ Bill of Costs presented at $5,313.44 is allowed for a total amount claimed.

A certificate of assessment will be issued. “Bruce Preston” Assessment Officer Toronto, Ontario July 22, 2011

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-662-10

STYLE OF CAUSE: JOHN ANTHONY FRANCHI v ATTORNEY GENERAL OF CANADA AND NATIONAL PAROLE BOARD ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES PLACE OF ASSESSMENT: TORONTO , ONTARIO REASONS FOR ASSESSMENT OF COSTS: BRUCE PRESTON DATED: JULY 22, 2011 WRITTEN REPRESENTATIONS : John Anthony Franchi FOR THE APPELLANTS (SELF-REPRESENTED) Michael J. Sims FOR THE RESPONDENT SOLICITORS OF RECORD : N/A FOR THE APPELLANTS (SELF-REPRESENTED) Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT