Federal Court Adjusts Costs in Judicial Review Case

Date: 20260416 Docket: T-2104-24 Citation: 2026 FC 506 BETWEEN: [NAME] Applicant and [NAME] (also known as [NAME]), [NAME] Respondents

REASONS FOR [NAME], Assessment Officer I. Overview [ 1 ] By way of Judgment and Reasons rendered on May 1, 2025 [Judgment], the Court dismissed the appeal in this file, with costs based on Column III to the table of Tariff B of the Federal Courts Rules,  SOR/98-106 [Rules]. [ 2 ] Pursuant to Rule 405, the Applicant served and filed a letter and a bill of costs on August 22, 2025, thereby initiating this assessment of costs under Rule 406. On September 9, 2025, a Direction was issued regarding the conduct and filing of additional materials by the parties. The Applicant did not file additional materials in chief, but submitted written representations in reply on November 5, 2025, following the Respondents’ written representations filed in response on October 14, 2025. [ 3 ] Tariff B as it read on December 20, 2025, applies to this assessment, as the Judgment was rendered before the amended Tariff B came into force on December 21, 2025 (section 13 of the Rules Amending the Federal Courts Rules and the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/2025-232). [ 4 ] Before proceeding with this assessment of costs, the preliminary issue of the jurisdiction of an assessment officer must be addresse d.

II. Preliminary Issues A . Does an assessment officer have the jurisdiction to grant an order? [ 5 ] At the reply stage, the Applicant requested that, in light of the delay in what should have been a straightforward assessment, the assessed costs be made payable forthwith, within 15 days of the Court’s Order as a result of this assessment. However, the jurisdiction of an assessment officer does not permit the issuance of an order. In addition, the inclusion of this provision in the costs assessment decision is not permitted by the Judgment. [ 6 ] Assessment officers and the Court are distinct entities. Subsection 5.1(1) of the Federal Courts Act , RSC, 1985. c F-7 , states that “[t]he Federal Court consists of a chief justice […] and 39 other judges,” whereas I am an officer of the Registry, appointed as assessment officer by the Court (definition of “assessment officer” under Rule 2). As an assessment officer, I am not a member of the Court and do not have the authority to issue orders. The settled law is that, once the Court has exercised its jurisdiction to adjudicate costs under subsection 400(1) of the Rules, assessment officers are empowered to issue reasons for assessment and certificates of assessment pursuant to Rule 405 ( [COMPANY] v Canada (National Revenue) , 2024 FC 906 at para 9; Canada ( Attorney General) v [COMPANY] , 2024 FCA 118 at para 6). This authority must, however, be exercised within the scope of the Court’s decision adjudicating costs. [ 7 ] In the absence of specific directions in the Judgment, no provision requiring that costs be payable forthwith upon assessment, or within a specific time, can be included in the reasons for assessment or certificate issued in respect of this assessment. Any issues concerning enforcement are left for the parties to resolve. Notwithstanding the absence of authority to include the requested provision in the reasons or certificate, I will consider under Item 26 found below whether the alleged delay caused by the Respondents warrants enhanced costs (Rule 409; paragraph 400(3)(o) of the Rules). [ 8 ] The analysis will now turn to the particulars of the assessable services and disbursements claimed.

III. Assessable Services [ 9 ] Except for Item 26, which is claimed at the upper end of Column V, the Applicant requests that all assessable services be allowed at the upper end of Column III, without, however, making specific submissions for each item in support of this position. [ 10 ] Relying on paragraph 20 of the decision [NAME] v [COMPANY] of Canada , 2022 FC 1728, the Respondents do not oppose an allocation at the mid-range of Column III on the basis of the modest complexity of the case. They further submit that the assessment should be conservative, citing the decision [COMPANY] v [COMPANY] , 2010 FCA 143 (CanLII) [ [NAME] ] in support of this position. [ 11 ] In reply, while the Applicant concedes that the case was not overly complicated, he submits that the total amount claimed is lower than the amounts permitted in other comparable cases, such as [NAME] v [NAME] , 2024 FC 1577 [ [NAME] ]. Having considered all the arguments, I find that not all claims should be allowed at the upper end of the available range. [ 12 ] Firstly, I note that the Court granted lump sums in the decisions cited by the Applicant. In that regard, I also note that paragraph 41 of the Judgment does not support a particular similarity between the present case and the costs decision rendered in [NAME] . Secondly, in cases such as the present one, where limited evidence supports allocations at the upper end, greater discretion is afforded to the assessment officer ( [COMPANY] v Canada (Santé) , 2014 FC 1049 at para 44; [NAME] at paras 3‒10). Thirdly, as assessable services are discrete, they should be assessed individually rather than uniformly allowed at the same level ( [NAME] v Canada , 2001 FCT 999 at para 7). Finally, an assessment officer cannot certify unlawful items ( [NAME] v Canada , 2007 FC 192 at para 2). W here a claim is inconsistent with the procedural steps followed in this file, the Rules, or the applicable case law, I will ensure compliance, even in the absence of opposition regarding a specific item. [ 13 ] The Applicant claims $9,617.50 for assessable services and $480.88 for taxes paid or payable on those services, for a total of $10,098.38. The amounts claimed under Items 7 and 15 will be disallowed. The amounts claimed under Items 1, 13 and 14 will be allowed in full, while those claimed under Items 8, 9 and 26 will be allowed for reduced amounts. No taxes will be allowed on assessable services for the reasons set out in the disbursements section. A. Items 1, 13 and 14 – Preparation and filing of originating documents, other than a notice of appeal to the Federal Court of Appeal, and application records – preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff – Counsel fee to first counsel, per hour in Court [ 14 ] The 7 units claimed under Item 1, at the upper end of Column III are allowed in light of the work involved in preparing and filing the notice of application and the application record (Rule 409; paragraph 400(3)(g) of the Rules). As discussed below under Items 7 and 15, this allowance also compensates for the preparation of the Applicant’s affidavits and memorandum of law and argument included in the application record. [ 15 ] The 5 units and 3 units claimed under Item 13(a) and Item 14(a) for preparation and appearance by counsel at the hearing held on April 6, 2025, are allowed as claimed at the upper end of the applicable range. As pointed out by the Applicant, the Respondents’ submissions regarding these items appear to relate to a different proceeding. Therefore, it is reasonable to accept a one-hour duration for the hearing, given that the parties are expected to be ready to proceed before the scheduled start time. B. Item 7 – Discovery of documents, including listing, affidavit and inspection [ 16 ] The Applicant claims 5 units under Item 7 for assessable services rendered in relation with the Applicant’s affidavits, which were included in the application record pursuant to subsection 309(2) of the Rules governing judicial review proceedings. This claim is disallowed for the following reasons. [ 17 ] While the Applicant submits that claims made for assessable services were limited to items applicable to a judicial review, Item 7 concerns the discovery of documents under Rules 222 to 232 and 295, which apply to actions rather than to proceedings instituted by way of application for judicial review ( [COMPANY] v [NAME] ([NAME], locale 375) , 2023 FCA 40, at para 8). In the absence of a Court order permitting the filing of documents under Item 7 in this judicial review matter, this claim cannot be allowed. [ 18 ] Item 1 is intended to compensate for the preparation of the affidavits filed in a judicial review proceeding, as those affidavits form part of the application record. As previously explained, the efforts associated with preparing these affidavits have been taken into account in allowing units at the upper end of Column III under Item 1. C. Item 8 – Preparation for an examination, including examinations for discovery, on affidavits, and in aid of execution Item 9 – Preparation for an examination, including examinations for discovery, on affidavits, and in aid of execution [ 19 ] The Applicant claims 5 units under Item 8 for preparation to an examination, and 3.75 units under Item 9 for attendance at the cross-examination of [NAME]. Both claims appear to relate to the cross-examination of [NAME], as no other examination or cross-examination took place in this matter, as per indicated in the Applicant’s reply. In light of the costs materials received from both parties, these claims will be slightly reduced to the midpoint of Column III. [ 20 ] With respect to Item 8, although preparation for the cross-examination required some time, the Applicant concedes in reply that the case was not overly complex. Concerning Item 9, the transcript included in the application record indicates that the cross-examination exceeded one hour, making it reasonable to calculate the units based on the Applicant’s proposed duration of 1.25 hours instead of using the 1 hour advanced by the Respondents. [ 21 ] Since fractional units are not permitted, the midpoint corresponds to either 3 or 4 units for Item 8, and to either 1 or 2 units per hour for Item 9 (subsection 2(2) of Tariff B; [COMPANY] v [COMPANY] , 2020 FCA 134 at para 162). After rounding up the fractional units in light of the result of the proceedings, 4 units are allowed for Item 8, and 2.5 units for Item 9 (1.25 hours x 2 units) (paragraph 400(3)(a) of the Rules). D. Item 15 – Preparation and filing of written argument, where requested or permitted by the Court [ 22 ] The Applicant claims 7 units for the preparation of a memorandum of law and argument. I note that the only such memorandum on the record is the one included in the application record. This claim is disallowed for the following two reasons. [ 23 ] To begin, Item 15, found under the subheading E. entitled “Trial or Hearing” , does not apply to a memorandum included in an application record, which instead falls within the scope of Item 1 ( [COMPANY] v [COMPANY] , 2025 FCA 208 at para 13; Biovail Pharmaceuticals Canada v Canada (Minister of National Health and Welfare ), [2009] FCJ 665 No 858 at para 27). As noted above, the work associated with preparing this memorandum is compensated under Item 1. [ 24 ] Besides, the Court file indicates that no memorandum falling under Item 18 was either requested or permitted by the Court in this matter. Therefore, no units will be allowed under this item. E. Item 26 – Assessment of costs [ 25 ] The Applicant claims twice the costs of this assessment at the upper end of Column V, for a total of 20 units. [ 26 ] At the outset, the Judgment does not authorize an allowance outside the range of 2 to 6 units set out in Column III. As mentioned in the decision Urbandale Realty Corporation Limited v Canada , 2008 FCA 167, at paragraph 20, submitted by the Respondents, I do not have the jurisdiction to vary the Court’s award of costs by applying Column V for this item. Furthermore, I do not have the authority to double the costs, as this would also amount to varying the Judgment. [ 27 ] I also note that the Applicant filed claims that were not permissible in a judicial review proceeding. In these circumstances, I do not agree with the Applicant that this assessment should have been straightforward, nor do I find merit in the allegation that the Respondents caused undue delays in the assessment. [ 28 ] The Respondents did not oppose an allowance of 3 units for the costs of this assessment, despite the limited costs materials submitted by the Applicant at that stage. In light of the Applicant’s subsequent reply and his success in this file, 5 units are allowed for the costs of this assessment (paragraph 400(3)(a) of the Rules). [ 29 ] After adjustments, 26.5 units are allowed for assessable services, totalling $4,505.00.

IV. Disbursements [ 30 ] A total of $510.71 is claimed in the disbursements section of the bill of costs, including any GST paid on those disbursements. More specifically, $419.21 is claimed for court reporter fees incurred for the cross-examination of [NAME], and $91.50 for printing and photocopies. These claims are uncontested and are allowed as lawful. [ 31 ] The application record found in the Court file confirms that the transcript was prepared and necessary for the conduct of this proceeding ( Merck & [COMPANY] v [COMPANY] , 2006 FC 631 at para 3). The amount claimed is also reasonable in light of the transcript’s length (subsection 1(4) of Tariff B). [ 32 ] The rate of $0.25 per page claimed was found reasonable for in-house photocopies in recent cases ( Clorox Company of Canada, Ltd v [NAME] , 2023 FC 174 at para 20). Even if the copies had been outsourced, this rate would remain reasonable, as third-party photocopying typically costs more. The number of copies claimed, totalling 366, is also found reasonable and necessary for the purpose of the proceeding in light of the size of the record. [ 33 ] The Applicant also claims $480.88 in GST, calculated on the 55.75 units claimed for assessable services in the bill of costs . The Respondents contend that this claim should be disallowed on the ground that they are tax-exempt. Even if the Respondents were tax-exempt, this would not preclude the Applicant from recovering taxes shown to have been paid or payable to his counsel in respect of permissible assessable services in light of the Court decision awarding costs to the Applicant (paragraph 1(3)(b) of Tariff B; [NAME] v [NAME] , 2016 FC 445 at para 8). Nonetheless, this claim is disallowed as unsubstantiated. [ 34 ] The Applicant has not established that taxes were paid or are payable on assessable services, as he has not filed an affidavit or made submissions satisfying the requirement of subsection 1(4) of Tariff B. Furthermore, the Applicant’s position expressed at the reply stage that he would withdraw the claim for taxes if the Respondents provided a certificate of tax exemption does not support that taxes were in fact paid or remain payable on assessable services to his counsel.

V. Conclusion [ 35 ] For the above reasons, the Applicant’s bill of costs is assessed and allowed at $5,015.71, payable by the Respondents to the Applicant. A Certificate of Assessment will be issued. "[NAME]" Assessment Officer FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2104-24 STYLE OF CAUSE: [NAME] v [NAME] (also known as [NAME]), [NAME] AT OTTAWA, ONTARIO WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT BY: [NAME] , Assessment Officer DATED: april 16, 2026 WRITTEN SUBMISSION BY : [NAME] FOR THE APPLICANT [NAME] SOLICITORS OF RECORD : [NAME], Alberta For The Applicant [NAME]