Canada ( Attorney General ) v. Kahn
T-2166-97
Teitelbaum J.
23/10/98
13 pp.
Application for order for payment of costs incurred by respondent for all proceedings associated with motion for judicial review initiated by applicant-Applicant filing notice of discontinuance-Respondent spending $5,215.05 for "legal advice" in relation to judicial review proceedings, $482.46 in relation to present application for costs-Federal Court Rules, 1998, r. 400 giving Court full discretionary power over amount, allocation of costs-R. 402 providing party against whom application abandoned entitled to costs forthwith-Issue assessment of costs, if any, to be paid to "winning" litigant who, throughout process representing himself, but with advice of legal counsel, at cost of $5,215.05-Applicant submitting since respondent representing himself, Court not having discretionary power to award costs, based on Lavigne v. Canada (Human Resources Development), [1998] F.C.J. No. 855 (F.C.A.)-Lavigne distinguished as Lavigne commencing procedures in which apparently successful-Here Attorney General commencing judicial review proceedings causing respondent to spend time, money to defend judicial review application and to seek legal advice required to defend interests-Respondent not claiming under Tariff B, but claiming out-of-pocket expenses paid to legal counsel for "advice" and for "lost time" due to amount of time "forced" to spend to defend interest in judicial review application obviously without merits as Attorney General discontinued application-Lavigne not meaning lay litigants who retain counsel cannot be reimbursed for expense-Applicant ordered to reimburse respondent $5,697.51 representing fees paid by respondent to legal counsel for legal advice on judicial review application, notice of motion for costs-Pursuant to r. 3, stating Rules shall be interpreted, applied so as to secure just, most expeditious, least expensive determination of every proceeding on merits, and r. 400(4), respondent should be reimbursed lump sum of $2,500 for disbursements for Court attendance, time spent in consultation with legal counsel, photocopying, service of documents-Such order not effectively solicitor-counsel costs as monies not being paid for legal fees for Court attendance, but as reimbursement for funds paid for legal advice-Federal Court Rules, 1998, SOR/98-106, rr. 3, 400, 402.