10.41: Assessment officer’s decision
Rule 538: Filing

Case Summary

The self-represented Applicant applied for an Order “staying” or holding “null and void” the assessment of Costs made against him on appeal; he sought, in effect, to appeal a Decision of an Assessment Officer taxing those Costs in the amount of $6,700.40.

Bielby J.A. declined to stay or hold the Costs assessment null and void, stating “I have no jurisdiction to set aside the costs awarded to Ms. Kudryk by this Court upon its dismissal of Mr. Hamill's appeal”.

However, Bielby J.A. was willing to take a more generous interpretation of the Application, and treat it not as an Application to overturn an entitlement to Costs, but rather as an Application to reduce the $6,700.40 awarded by the Assessment Officer. Bielby J.A. noted that, collaterally and preliminarily, the issue arose as to whether and how an award of Costs by an Assessment Officer could be challenged.

Bielby J.A. noted that no procedure for appealing an assessment of Court of Appeal Costs is set out in the Rules of Court or the Practice Directions, but no argument was made that such an appeal is not possible. The Court stated that Rule 10.41(1) establishes the duties of an Assessment Officer in relation to a review of a Costs award made by a Justice of the Court of Queen's Bench, and, by analogy, to this Application. It provides that “...an assessment officer may, with respect to an assessment of costs payable, determine whether the costs that a party incurred ... are reasonable and proper costs”.

The specific complaint by Mr. Hamill was that the sum of $4,000.00 awarded against him for the preparation of a Factum was not reasonable and proper, since the factum in question had not been filed and served in the time frame set out in Rule 538. After reviewing Mr. Hamill’s evidence, Bielby J.A. determined that Mr. Hamill had not established that the Factum was not filed in time. The Court further noted that the remainder of Mr. Hamill’s arguments went to the merits of the underlying Judgment, and not to this Application on Costs. Bielby J.A. dismissed the Application, with Costs.

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