Federal Court Upholds Cost Claims of Respondents

Date: 20260513 Dockets: A-369-23 A-111-24 A-168-24 Citation: 2026 FCA 95 Present: [NAME], Assessment Officer Docket: A-369-23 BETWEEN: [NAME] Appellant and [COMPANY], [NAME] and [NAME] Respondents Docket: A-111-24 AND BETWEEN: [NAME] Appellant and [COMPANY], [NAME] and [NAME] Respondents Docket: A-168-24 AND BETWEEN: [NAME] Appellant and [COMPANY], [NAME] and [NAME] Respondents Assessment of costs without appearance of the parties. Certificate of Assessment delivered at Ottawa, Ontario, on May 13, 2026.

REASONS FOR ASSESSMENT BY: [NAME], Assessment Officer Date: 20260513 Dockets: A-369-23 A-111-24 A-168-24 Citation: 2026 FCA 95 Present: [NAME], Assessment Officer Docket: A-369-23 BETWEEN: [NAME] Appellant and [COMPANY], [NAME] and [NAME] Respondents Docket: A-111-24 AND BETWEEN: [NAME] Appellant and [COMPANY], [NAME] and [NAME] Respondents Docket: A-168-24 AND BETWEEN: [NAME] Appellant and [COMPANY], [NAME] and [NAME] Respondents

REASONS FOR [NAME], Assessment Officer I. Overview [ 1 ] By way of Judgment and Reasons for Judgment rendered on June 26, 2025 (Judgment), the Court dismissed all three appeals in these files. The Judgment specified that one set of costs was granted to the respondents, calculated in the normal range, corresponding to the middle of Column III of Tariff B of the Federal Courts Rules , SOR/98-106 (Rules) . [ 2 ] The three respondent s initiated this assessment pursuant to Rule 406, by filing one bill of costs for the three files, on October 1, 2025. Decisions and directions issued in these files, together with receipts, were attached thereto. [ 3 ] On October 3, 2025, a [NAME] was issued to the parties regarding the conduct of the assessment and the filing of costs materials. On October 27, 2025, the respondents served and filed written representations, and the appellant submitted written representations in response on December 1, 2025. The respondents did not file a reply. [ 4 ] Because the Judgment was rendered before the amended Tariff B came into force on December 21, 2025, Tariff B as it read on December 20, 2025, applies to this assessment (section 13 of the Rules Amending the Federal Courts Rules and the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/2025-232). [ 5 ] Upon review of the materials received, preliminary issues relating to the jurisdiction of an assessment officer and the relevancy of the financial position of the parties must be examined.

II. Preliminary Issues A. Can an assessment officer impose sanctions on a party? [ 6 ] In his written representations in response, the appellant requests that the respondents be sanctioned and ordered to pay the amount they claimed in the bill of costs. This request cannot be entertained. [ 7 ] The jurisdiction of an assessment officer is to assess costs pursuant to Rule 405. Assessment officers and the Court are distinct entities. Subsection 5(1) of the Federal Courts Act , RSC 1985, c F-7, states that “[t]he Federal Court of Appeal consists of a chief justice […] and 14 other judges,” whereas I am an officer of the Registry, appointed as assessment officer by the Court (definition of “assessment officer” under Rule 2). [ 8 ] As an assessment officer, I am not a member of the Court and cannot go beyond, or contradict, the Judgment rendered by the Court in this matter, which awarded costs to the respondents and not to the appellant ( [NAME] v. Canada (Attorney General) , 2006 FCA 418 at para. 7). In other words, the matter was decided by the Court and cannot be relitigated at this stage. [ 9 ] Finally, in the absence of specific submissions to that effect, a mere request that the respondents be sanctioned to pay the appellant the full amount claimed in the bill of costs cannot be construed as a claim for the costs of this assessment in favour of the appellant pursuant to subsection 408(3) of the Rules. B . Will the financial position of the parties be a relevant factor for this assessment of costs? [ 10 ] An assessment officer may consider factors referred to in subsection 400(3) of the Rules, where found relevant (Rule 409). At the outset, it must be clarified that the weighing of the relevant factors could not result in an allowance outside the limits established in the Judgment. [ 11 ] Throughout his submissions, the appellant states that he has been impoverished by his litigation with the respondents and maintains that the financial imbalance between the parties should weigh in favour of the appellant. As a matter of law, I cannot accept this contention as a relevant factor in this assessment. [ 12 ] Given that costs were awarded to the respondents by the Court, the appellant’s limited resources will not be considered a relevant factor at this assessment stage pursuant to paragraph 400(3)(o) of the Rules ( [NAME] v. Canada (Attorney General) , 2005 FCA 169 ( [NAME] ) at para. 4; [NAME] v. Canada , 2007 FCA 179 at para. 8). In that respect, the Federal Court of Appeal stated as follows in [NAME] v. [NAME] , 2014 FCA 174 at paragraph 12: [12] […] once a matter has proceeded to trial and judgment has been rendered, a party’s impecuniosity is not a relevant factor in the assessment of costs. The person entitled to costs has had to incur the costs of proceeding to trial and has the right to be compensated within the limits prescribed by the Rules of Court. [ 13 ] The analysis now turns to the assessable services and disbursements claimed.

III. Assessable Services [ 14 ] The appellant’s overarching position is that no costs should be allowed for assessable services, and his submissions otherwise do not address the level of costs awarded in the Judgment. However, as outlined in the preliminary section, the Judgment is binding, and disallowing lawful claims is an unsustainable position. [ 15 ] In light of subsection 2(2) of Tariff B , where the midpoint yields a fractional number, it must be rounded either up or down ( [COMPANY] v. [COMPANY] , 2020 FCA 134 at para. 162). Therefore, I agree with the respondents that costs assessed within the normal range, as set out in the Judgment, may be established at either the higher or lower whole number closest to the midpoint. [ 16 ] Should a claim be found substantially unopposed following the disposal of the appellant’s arguments, I will ensure that the assessable services claimed comply with the Judgment, the procedural steps followed in this case, the Rules and the applicable jurisprudence. [ 17 ] As explained below, the claims made under Items 22(a), and 26 will be allowed in full, while the claims made under Items 18 and 19 will be partially allowed and the one made under Item 21(a) will be disallowed. A. Item 22 – Counsel fee on hearing of appeal (a) to first counsel, per hour Item 26 – Assessment of costs [ 18 ] The 3 units sought under Item 22(a) by the respondents for appearance of their counsel at the hearing of the appeals held on June 26, 2025, are allowed as very reasonable given the duration of the hearing. While the appellant notes that counsel for the respondents did not make oral submissions, it has been held that entitlement to this item does not depend on making submissions. Counsel for the r espondents was still required to attend and remain present throughout the hearing ( [COMPANY]. v. [COMPANY]. , 2010 FCA 78 at para. 6; [COMPANY]. v. [COMPANY]. , 2010 FCA 143 (CanLII) ( [NAME] ) at para. 16). [ 19 ] The 4 units claimed under Item 26 for the costs of this assessment are also allowed, as costs materials and submissions were filed by the respondents and this number corresponds to the midpoint of Column III. B. Items 18 and 19 – Appeals books and Memorandum of fact and law [ 20 ] Turning to Items 18 and 19, 1 unit is claimed for each appeal book filed in files A-369-23 and A-111-24, for a total of 2 units, and 6 units are claimed for each of the memoranda filed on files A-369-23, A-111-24 and A-168-24, for a total of 18 units. [ 21 ] The parties made no submissions regarding the interpretation of the phrase “one set of costs” found in the Judgment, although the appellant opposes the amounts claimed for the memoranda, submitting that they contain repetitions. The respondents contend that the filings of these documents were necessary procedural steps. It also appears that the bill of costs was prepared on the basis that the limit of one set of costs would apply only to the items pertaining to the appeal hearing (Item 22) and the assessment of costs (Item 26). I do not accept the respondents’ interpretation in that regard. [ 22 ] I find that the limit set out in the Judgment applies to all the items that were claimed in the bill of costs. If the Court had intended to limit the restriction to part of the award of costs, it would have stated it expressly ( [NAME] at para. 4 ; Canadian Association of [NAME] v. Canada , 2008 FCA 157 at para. 100; [NAME] v. Commissioner of Patents 2008 FCA 96 at para. 3; [NAME] v. [NAME] , 2011 FCA 217 at para. 50). [ 23 ] In [NAME] v. Canada (Public Safety and Emergency Preparedness) , 2015 FCA 8, at paragraph 4, the Federal Court of Appeal held the following with respect to the interpretation of an award of a single set of costs: “[t]he Assessment Officer's jurisdiction to assess costs flows from the order made by the Court […] Having found, as he did, that costs were only allowed in file A-237-11, the Assessment Officer was without jurisdiction to award them in file A-244-11.” Accordingly, an award of a single set of costs for three appeal files, as in the present case, cannot be interpreted as permitting the assessment of separate claims, one for each of the three files, under Items 18 and 19. [ 24 ] In light of the foregoing, the single unit available for Item 18 under Column III is allowed once for both of the appeal books, and 6 units only are allowed for all the memoranda. In consideration of the amount of work and result of the proceeding factors, the respondents’ selection of 6 as the midpoint of Item 19 is accepted (Rule 409; paragraphs 400(3)(a) and (g) of the Rules). C. Item 21 – Counsel fee: (a) on a motion, including preparation, service and written representations or memorandum of fact and law [ 25 ] The respondents claim 6 units under Item 21(a) for responding to pre-hearing informal motions that lead to the following orders or directions of the Court: an Order rendered in files A-369-23, A-111-24 and A-168-24 on June 20, 2024; an Order rendered in file A-168-24 on August 15, 2024; a [NAME] issued in files A-369-23, A-111-24 and A-168-24 on June 2, 2025; a [NAME] issued in files A-369-23 and A-168-24 on June 18, 2025; a [NAME] issued in files A-111-24 and A-168-24 on June 19, 2025; a [NAME] issued in files A-369-23 and A-111-24 on June 20, 2025. [ 26 ] The appellant’s argument that the Court agreed to the filing of letters and materials in the days preceding the hearing of the appeals is immaterial to the respondents’ entitlement to units under Item 21. Nonetheless, the claim will be disallowed since unlawful. [ 27 ] The state of the jurisprudence is that an order on an interlocutory motion – or informal motion for the purposes of this analysis – which does not address costs is considered as an award of no costs. The above-mentioned orders contain no provision for costs. The discretion under Rule 400(1) is exercised independently of the outcome of the judgment, except where an interlocutory decision would expressly award costs in the cause or following similar language ( [NAME] v. Canada (Minister of Natural Resources) , 2004 FCA 123 at para. 6; [COMPANY]. v. [COMPANY]. , 2006 FC 1333 at para. 13; [NAME] v. Canada (Attorney General) , 2013 FCA 134 at para. 14). As I readily conclude that the above-mentioned directions did not either contain a provision for costs, it is not necessary to address whether costs may be awarded by way of directions. [ 28 ] In summary, 14 units are allowed for assessable services, amounting to $2,520. In the absence of specific opposition from the appellant with regard to GST, and since the costs materials do not uncover that an allowance of GST on assessable services would result in a double indemnification or profit, the reduced disbursement amount of $126 is allowed for 5% of GST paid or payable by the respondents on the allowed assessable services pursuant to paragraph 1(3)(b) of Tariff B.

IV. Disbursements [ 29 ] In the bill of costs, a total of $1,914.97 is claimed for expenses incurred by counsel for the respondents, [NAME], for travelling between Calgary and Toronto to attend the hearing of the three appeals on June 26, 2025. More specifically, $1,156.92 is claimed for airfare, $12.35 for ground transportation, $495.58 for accommodation, and $159.52 for meals. An additional amount of $90.60 is claimed for Alberta GST paid on these expenses. The amount of $12.35 is also claimed for a train ticket. [ 30 ] As submitted by the respondents, Rule 405 entitles an assessment officer to assess claims made for travel expenses. The respondents maintain that the appellant understood that travel costs would be sought, and that the total amount of disbursements claimed is reasonably modest. The appellant disputes these claims and argues that allowing them would encourage unnecessary and unreasonable expenses. He asserts that the respondents chose the most expensive options and should bear those costs. The appellant contends that costs were inflated by retaining Calgary counsel, selecting an expensive hotel, and incurring excessive meal expenses. He also submits that a virtual hearing would have avoided such costs. [ 31 ] With regard to the appellant’s arguments, the respondents were entitled to retain counsel of their choice, and the appellant cannot rely at the assessment stage on requests not made at earlier stages of the appeal. In this regard, the hearing of the three appeals was scheduled to take place in Toronto, as requested by the appellant in the requisition for hearing filed on December 9, 2024. That requisition also identified [NAME], from Calgary, as counsel for the respondents, who had been known as such since the filing of the notices of appearance in these files. Similarly, no weight can be given at this stage to the argument that a virtual appearance would have avoided costs. While I do not accept the appellant’s argument regarding alternative venues, I agree that some of the expenses lack reasonableness and necessity. [ 32 ] Subsection 1(4) of Tariff B establishes the standard of proof regarding disbursements, and that disbursements must have been reasonable. In addition, the jurisprudence holds that disbursements must be shown to have been necessary for the conduct of a proceeding ( [COMPANY]. v. [COMPANY]. , 2006 FC 631 at para. 3). [ 33 ] The respondents submitted invoices in support of each of the travel expenses but made limited submissions as to their reasonableness, in particular with respect to the higher amounts, thereby leaving greater discretion to the assessment officer ( [NAME] National Council of [NAME] v. Canada (Attorney General) , 2007 FC 961 ( [NAME] ) at para. 21). However, disallowing all the disbursements as contended by the applicant would be unfair, as the invoices establish that actual costs were incurred ( [NAME] at para. 21; [NAME] at para. 24). That said, certain claims require adjustment to comply with the criteria of reasonableness and necessity, as costs are intended to indemnify the successful party without unduly burdening the unsuccessful one ( [NAME], at para. 21). Caution must be exercised to avoid excessive or luxurious claims ( Merck & Co. v. [COMPANY]. , 2002 FCT 842 at para. 29). [ 34 ] The National Joint Council Travel Directive (NJC Directive), as used by the Federal Government, will serve as a relevant guide, although circumstances may warrant some flexibility in assessing whether the expenses were reasonable and necessary ( Gemby v. Canada (Human Resources Development) , [2000] F.C.J. No. 723, 2000 CanLII 15462 (FC) at para. 7; [NAME] v. [COMPANY]. , 2006 FC 422 ( [NAME] ) at para. 108). More precisely, the version of that Directive in force at the time the request for assessment was made will be applied ( Robert Mclaughlin v. Canada (Attorney General) , [2010] F.C.J. No. 1029 ( [NAME] ) at para. 24). [ 35 ] Taxes on disbursements will be allowed only where the invoice shows that they were paid to a third party, and only in respect of disbursements that are otherwise accepted (paragraph 1(3)b) of Tariff B). The additional amount of $90.60 claimed for Alberta GST on most of the disbursements is disallowed, in order to avoid a profit, as there is no explanation reconciling this claim with the actual tax amounts indicated in the invoices . A. Travel - Air and Ground [ 36 ] The respondents claim $1,156.92, excluding taxes, for outbound and return flights between Calgary and Toronto. The invoice establishes that a total amount of $1,217.73, inclusive of taxes, was incurred. An additional amount of $12.35 is claimed for a non-taxable one train ticket purchased to travel to the airport following the hearing. [ 37 ] To begin with, the claim for the train ticket is allowed, as it is modest, was incurred while in travel status, and reflects a mode of transportation consistent with the NJC Directive. Regarding the plane tickets, the respondents purchased economy class tickets, which aligns with the standard set out in the NJC Directive for travel within Canada involving an overnight stay. The hearing date of June 26, 2025, was scheduled on May 16, 2025, and the tickets were purchased on June 6, 2025. The appellant submits that the amount claimed is significantly higher than what he himself paid for a flight from Calgary to Toronto during the same week. [ 38 ] The NJC Directive provides that “the lowest available airfares appropriate to particular itineraries shall be sought and bookings shall be made as far in [NAME] as possible.” I am satisfied that the plane tickets were purchased within a reasonable timeframe following the scheduling order, bearing in mind the possibility of settlement or discontinuance. However, I am not satisfied that any steps were taken to secure more cost-effective options consistent with the reasonableness criteria, whether through alternative economy-class fare categories, different carriers, or alternate departure times. [ 39 ] In light of the foregoing, the reduced amount of $1,100.00 is allowed for airfare to reflect reasonableness, inclusive of taxes. Together with the train ticket, a total of $1,112.35 is allowed for transportation. B. Travel - Hotel [ 40 ] In the bill of costs, the amount of $495.58, excluding taxes, is claimed for a hotel room booked for the night of June 25, 2025, at the [NAME] located near the hearing location in Toronto. The invoice confirms that a total of $560 was paid, inclusive of all taxes and charges. This claim will be allowed for a reduced amount to reflect reasonableness. [ 41 ] The standard provided in the NJC Directive is a single room, conveniently located in a safe environment. I do not have sufficient information to confirm whether a single room was booked. However, this assessment will proceed on the basis that the applicable standard for the stay was a single room. [ 42 ] The selected hotel is listed in the [NAME] but is also recognized as a higher-end establishment. In addition, the online Canadian City Rate Limits, that is used by the Federal Government as a guide to reasonable accommodation costs, suggests a maximum rate of $335 for a single room booked in June in Toronto, before other charges and taxes. [ 43 ] The appellant contends that this hotel is luxurious and that less costly options were available. The respondents’ costs materials do not indicate when the booking was made or whether any steps were taken to identify less expensive accommodation. In these circumstances, $335, together with $27.41 and $11.42 for additional room-related charges reflected in the invoice, plus the HST of $43.55, $3.56 and $1.48 associated to these amounts, for a total of $422.42, will reasonably compensate the respondents for the stay. C. Travel - Meals [ 44 ] The amount of $159.52 is claimed in the bill of costs for meals, while the invoices totalize $148.40, taxes included. Given that costs shall exclude profit, it will be proceeded on the basis of a claim made for $148.40. [ 45 ] The appellant maintains that he should not be required to reimburse food purchased at the Calgary airport prior to counsel’s departure for Toronto, and that self-prepared meals would have been possible. The applicant also argues that he should not pay for luxurious food. [ 46 ] Under Tariff B, to be considered reasonable and necessary, travel expenses must have been incurred by counsel while in travel status. It has been held that only exceptional circumstances can justify a claim for a meal while counsel was not in travel status ( Canada (Attorney General) v. Sam lévy et associés inc ., 2008 FC 980 at para. 13; Hershkovitz v. Tyco Safety Products Canada Ltd. , [2010] F.C.J. No. 468 at para. 53; [COMPANY]. v. [COMPANY] , 2012 FC 48 at para. 125). In the same manner, the NJC Directive does not provide for reimbursement of meals while not in travel status ( [NAME] at para. 108; [NAME] at para. 24; [COMPANY]. v. British Columbia Hydro and Power Authority , 2023 FC 1446 at para. 77). [ 47 ] Upon review of the invoices, $35.98 (including $5.00 in gratuities) is claimed for a meal, and $17.12 for snacks and a bottle of water purchased at the Calgary airport on June 25, 2025, between 12:00 p.m. and 12:30 p.m., just prior to counsel’s departure for Toronto. I consider that counsel was in travel status at the time these expenses were incurred, as he was required to be present at the airport at that stage of the itinerary in accordance with standard carrier policies. Furthermore, airport security regulations restricting access to outside food and beverages justify the necessity of these expenses, given the departure time. I also note that no claim was made for dinner upon counsel’s arrival in Toronto that day. Given the foregoing, and the fact that the two amounts claimed are close to the limits suggested by the NJC Directive for lunch and incidentals, I find these claims to be reasonable and therefore allow them. [ 48 ] I conclude that the following remaining food expenses claimed were also incurred while in travel status, since incurred in Toronto on June 26, 2025, the day on which the three appeals were heard: $7.90 for a snack, $52.96 (including $6.91 in gratuities) for lunch, and $29.95 (plus $4.49 in gratuities) for dinner. Except for the amount of $52.96, all these amounts are within the limits prescribed by the [NAME] for incidentals (for snacks and tips) and for meals. Given the appellant’s opposition regarding luxurious meal, and the guidance provided by the [NAME] as to maximum permissible amounts, the claim of $52.96 is reduced to $29.60 taxes included, plus $6.91 in gratuities as shown on the receipt, for a total of $36.51. As a result, a total of $131.95, including taxes and gratuities, is allowed for food and meals. [ 49 ] In summary, $1,112.35 is allowed for transportation, $422.42 is allowed for accommodation, $131.95 for meals, and $126 for GST associated to assessable services, for a total amount of $1,792.72 allowed for disbursements.

V. Conclusion [ 50 ] For the above reasons, the respondents’ bill of costs is assessed and allowed in the amount of $4,312.72 payable by the appellant to the respondents. A certificate of assessment will be issued. “[NAME]” Assessment Officer FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKETS: A-369-23 A-111-24 A-168-24 STYLE OF CAUSE: [NAME] v. [COMPANY], [NAME] and [NAME]‑[NAME] AT OTTAWA, ONTARIO WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT BY: [NAME], Assessment Officer DATED: MAY 13, 2026 WRITTEN SUBMISSIONS BY : [NAME] ON HIS [NAME] FOR THE RESPONDENTS SOLICITORS OF RECORD : [COMPANY], Alberta FOR THE RESPONDENTS