Executive Summary: Key Legal and Evidentiary Issues

• The court struck the Plaintiff’s Statement of Claim and proceeded with an assessment of legal costs.

• Defendant submitted a Bill of Costs totaling $1,440 under Column III of Tariff B of the Federal Courts Rules.

• Plaintiff did not oppose the amount but claimed the costs were extinguished through a disputed bill of exchange.

• The court clarified that an assessment officer cannot determine the validity of a payment method, only the quantum of costs.

• 8 units of assessable services were allowed, with adjustments made to comply with procedural rules.

• Defendant’s request for additional costs under Item 27 was denied to prevent double recovery.

Facts and outcome of the case

Background of the dispute

The Plaintiff, David Charles Penner, initiated an action in the Federal Court, which was ultimately struck following the Defendant’s motion. The Defendant, His Majesty the King, represented by counsel from the Attorney General of Canada, filed a Bill of Costs seeking reimbursement for legal expenses incurred in defending the action.

After the Statement of Claim was struck, the Defendant served a Bill of Costs, written submissions, and supporting affidavits to initiate an assessment process. The Plaintiff responded but did not challenge the amount of costs claimed. Instead, he argued that he had discharged the payment obligation through a bill of exchange and related documents. The Defendant rejected this method of payment and maintained that costs had not been paid.

Procedural developments

Throughout the assessment process, the court issued multiple Directions to both parties, clarifying timelines and procedural requirements. The Plaintiff filed additional documents late in the process, some of which were accepted into the record despite procedural deficiencies. The Defendant submitted a final reply confirming that no valid payment had been received and that assessment should proceed.

The Plaintiff’s materials referenced a remittance and bill of exchange intended to discharge the costs. The court, however, held that an assessment officer lacks jurisdiction to determine the legal validity of such a payment method or to receive payment unless specifically authorized. Therefore, the matter proceeded strictly as a cost assessment.

Assessment of costs

The Defendant initially claimed 8 units of assessable services totaling $1,440 under Column III of Tariff B. After reviewing the submissions, the court approved these units with some internal reallocation. Specifically, units claimed for the preparation of a motion and assessment-related work were adjusted to reflect accurate alignment with the Judgment and applicable rules. The court also invoked Rule 3 of the Federal Courts Rules to ensure a just and proportionate outcome.

A request by the Defendant for an additional unit under Item 27 (covering exceptional services) was denied. The court reasoned that the effort related to the assessment had already been covered under Item 26 and that granting an additional unit would amount to double compensation, which is impermissible.

Final outcome

The court issued a Certificate of Assessment awarding the Defendant $1,440 in costs, payable by the Plaintiff. No damages were awarded. The Plaintiff’s attempt to discharge the costs through non-traditional financial instruments was not recognized by the court for jurisdictional reasons, and the assessment concluded in favor of the Defendant.