Date: 20260623
Docket: A-136-24
Citation: 2026 FCA 117
|
BETWEEN:
|
|
VOLODYMYR BYKOV
|
|
Appellant
|
|
and
|
|
HIS MAJESTY THE KING
|
|
Respondent
|
REASONS FOR ASSESSMENT
KARINE TURGEON, Assessment Officer
I. Overview
[1] By way of Judgment and Reasons for Judgment rendered on May 29, 2025 (Judgment), the Court dismissed the appeal in this file, with costs to the respondent.
[2] The respondent initiated this assessment following rule 406 of the Federal Courts Rules, SOR/98-106 (Rules), by serving and filing a bill of costs and an affidavit of disbursements on August 12, 2025.
[3] On August 15, 2025, a direction was issued to the parties regarding the conduct and filing of costs materials for this assessment. On September 5, 2025, the respondent served and filed written representations in support of the request for assessment and informed the assessment officer that the appellant had sought leave to appeal to the Supreme Court of Canada from the Judgment. According to the Supreme Court of Canada docket, the application was filed on August 26, 2025.
[4] On October 17, 2025, the appellant served and filed written representations in response to the request for costs assessments, together with a book of authorities. Due to technical issues reportedly encountered by the registry, a direction was issued on November 12, 2025, confirming the acceptance of the documents for filing. The respondent did not file a reply with regard to these documents and confirmed on November 14, 2025, that it was not seeking an extension of time to do so.
[5] The appellant’s application for leave to appeal from the Judgment was dismissed by the Supreme Court of Canada on April 16, 2026, while the request for assessment of costs remained outstanding. On April 21, 2026, the respondent filed a letter advising of the dismissal and requesting that the assessment be carried out.
[6] In a letter dated April 29, 2026, the appellant submitted that the respondent had failed to comply with the direction initially issued by not filing invoices or a reply. The appellant also objected to the respondent’s selection of column III, requested that a further direction be issued requiring the filing of those documents, and sought an adjournment of the assessment pending the respondent’s compliance.
[7] On May 1, 2026, a third direction was issued, confirming the acceptance of the appellant’s letter of April 29, 2026, as a supplemental response to the request for assessment of costs, given the appellant’s desire to raise additional submissions following the dismissal of his application for leave to appeal to the Supreme Court. The direction also afforded the respondent an opportunity to file a reply to the appellant’s supplemental response and any additional invoices it wished to file. The appellant was then afforded an opportunity to file a sur-reply regarding any adduced invoices, following which the respondent was permitted to file a further reply.
[8] In a letter dated May 4, 2026, the respondent advised that all invoices supporting the claims made for disbursements had been attached to the affidavit previously served and filed on August 12, 2025. For convenience, the affidavit was reattached to the letter by the respondent. On May 29, 2026, the appellant filed a sur-reply concerning the invoices. The respondent did not file a further reply to that sur-reply.
[9] In light of the costs materials filed by the parties, a preliminary issue concerning the effect of the application for leave to appeal the Judgment to the Supreme Court of Canada on this assessment of costs must be examined.
II. Preliminary Issue
A. Did the filing of an application for leave to appeal the Judgment to the Supreme Court affect the assessment of the costs process?
[10] In his first response filed on October 17, 2025, the appellant objected to the assessment of costs on the ground that he had filed an application for leave to appeal to the Supreme Court of Canada from the Judgment. In that regard, he submitted that the assessment of costs should be deferred until the issuance of a final decision by the Supreme Court of Canada. The respondent did not reply to this objection.
[11] Owing to the assessment officers’ caseload and the resulting processing delays, the application for leave to appeal from the Judgment was dismissed while the request for assessment of costs remained outstanding. Accordingly, the appellant’s objection is moot. In any event, to clarify the matter, the filing of the application for leave to appeal had no impact on the assessment of the costs process.
[12] First, contrary to the appellant’s contention, the applicable statutes, regulations and jurisprudence do not provide for an automatic stay or suspension of a decision awarding costs. The appellant submitted that by virtue of Rules 400(1) and 403, the Judgment was automatically stayed upon filing of the application for leave to appeal. While those rules relate to the broad discretion vested in a judge regarding the award of costs, they do not provide for an automatic statutory stay of a decision upon the filing of an application for leave to appeal, as described by the appellant, nor did the Judgment contain any disposition that could have led to such a stay.
[13] The jurisprudence confirms that subsection 65(1) of the Supreme Court of Canada Act R.S.C., 1985, c. S-26 (SCA), provides for a statutory stay of execution of enforcement measures by a third party, such as a sheriff, upon the filing of a notice of appeal (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 1999 CanLII 712 (SCC), [1999] 1 S.C.R. 381 [Commission des droits de la personne] at paras. 9‒15); Canada (Minister of Citizenship and immigration) v. Harkat, 2006 FCA 215 at para. 24). Given that leave to appeal was not granted and no notice of appeal was subsequently filed, subsection 65(1) of the SCA could not have operated to impose an automatic statutory stay of the execution of enforcement measures in this matter.
[14] In any event, and for greater certainty, even if leave to appeal had been granted and a notice of appeal had been filed, thereby giving rise to an automatic stay of execution of enforcement measures under subsection 65(1) of the SCA, the assessment of costs could nevertheless have proceeded unless a stay of proceedings had been ordered pursuant to section 65.1 of the SCA (Commission des droits de la personne at para. 9; Sander Holdings Ltd. v. Canada (Minister of Agriculture), [2009] F.C.J. No. 720 (FCA) (QL) at para. 12). This is explained by the established principle that an assessment of costs does not constitute an enforcement measure taken in execution of a judgment, but rather a proceeding to determine the quantum of costs, following which enforcement measures may, if necessary, be undertaken (Era Electronics (Canada) Ltd. v. Quebec North Shore and Labrador Railway Company Inc., [1997] F.C.J. No. 68; 1997 CanLII 17595 (FC) at paras. 7‒8; Carter Wallace Inc. v. Wampole Canada Inc., 2003 FC 990 at para. 12; Nature’s Path Foods Inc. v. Country Fresh Enterprises Inc., 2007 FC 116 at para. 19).
[15] Second, at paragraph 22 of the written representation filed on October 17, 2025, the appellant sought an “order postponing [of] all costs liabilities”
until the conclusion of the proceedings before the Supreme Court of Canada. This request could not have been acceded to as Rule 405 does not permit an assessment officer to issue an order (Pelletier v. Canada (Attorney General), 2006 FCA 418 at para. 7; Suresh v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15812 at para. 6; Lessard-Gauvin v. Canada (Attorney General), 2019 FC 726 at para. 7). The appellant correctly submits that a stay of a decision awarding costs may be granted. However, such relief may only be ordered by a judge, and not by an assessment officer, upon the filing of a motion (Rule 398; section 65.1 of the SCA). No such motion was filed in this matter. In these circumstances, and in the absence of any confirmation that the respondent consented to a deferral of the assessment it lawfully initiated, it was entitled to proceed with it.
[16] The analysis will now turn to the assessable services and disbursements claimed.
III. Assessable Services
[17] 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). It should be noted that column “III”
was replaced by column “2”
in Rule 407 and in amended Tariff B.
[18] In a letter dated April 29, 2026, the appellant contends that column “3”
should not have been used to formulate claims for assessable services. It is unclear whether the appellant intends to submit that column III of Tariff B, as it read on December 20, 2025, should not have been used, or whether he is referring instead to column 3 of amended Tariff B. In any event, the respondent applied column III of Tariff B as it read prior to the coming into force of the amendments. Accordingly, no error was committed by the respondent either in respect of the applicable version of Tariff B or the applicable column.
[19] The minimum number of units available under column III is sought throughout, except in respect of Items 26 and 27, for which the midpoint is sought. Aside from the previously rejected argument that the respondent selected the wrong column, the appellant did not otherwise oppose the claims made for assessable services.
[20] As it will be explained below, all the claims made for assessable services will be allowed as submitted, except for the one made under Item 27, which will be allowed for a reduced number of units.
Items 19, 21(a), 22(a), 25 and 26
[21] The 17 units claimed under the following items are allowed in their entirety:
-
Item 19: Memorandum of fact and law (4 units);
-
Item 21(a): Counsel fee: on a motion, including preparation, service and written representations or memorandum of fact and law (2 units);
-
Item 22(a): Counsel fee on hearing of appeal: to first counsel, per hour (6 units);
-
Item 25: Services after judgment not otherwise specified (1 unit);
-
Item 26: Assessment of costs (4 units).
[22] First, the units claimed under Item 19 for the filing of the respondent’s memorandum of fact and law, and those claimed under Item 25 for services rendered after judgment, are allowed, the number of units claimed for each of these items corresponding to the minimum number of units available under column III.
[23] Two units, also corresponding to the minimum number of units available under column III, are claimed under Item 21(a) for services rendered in relation to a motion. Entitlement to units under this item and similar items of Tariff B depends on costs having been expressly granted by the Court on an interlocutory motion filed in the course of the main proceeding (Canada (Minister of Human Resources Development) v. Uzoni, [2006] F.C.J. No. 1619 (FCA) (QL) at para. 4; Coca-Cola Ltd. v. Pardhan (c.o.b. as Universal Exporters), [2006] F.C.J. No. 72 (FC) (QL) at para. 23).
[24] Upon review of the Court file, costs in the cause were awarded in the interlocutory order dated August 8, 2024, disposing of the appellant’s motion to determine the contents of the appeal book. For clarity, such an award of costs entitles the successful party in the main proceeding to the costs of the motion (Balisky v. Canada (Minister of Natural Resources), 2004 FCA 123 at para. 6). The Judgment having determined the respondent to be the successful party in the main proceeding, it is entitled to units for services rendered with regard to that motion. Therefore, the 2 units claimed are allowed.
[25] Column III provides for a range of 2 to 3 units for Item 22(a), for an appearance at an appeal hearing. Given that the appellant does not contest that the hearing lasted 3 hours, and that column III prescribes a minimum of 2 units per hour, the 6 units claimed are allowed (2 units multiplied by 3 hours).
[26] Finally, in consideration of the amount of work factor, the 4 units claimed by the respondent under Item 26 for the services rendered for the purposes of this assessment are allowed, in light of the costs materials filed by the respondent.
Item 27 – Such other services as may be allowed by the assessment officer or ordered by the Court
[27] Two units are claimed under Item 27 for the filing of the notice of appearance. Item 27 can come into play for services not otherwise addressed in Tariff B, such as the preparation and filing of a notice of appearance (Halford v. Seed Hawk Inc., 2006 FC 422 at para. 131).
[28] I find that filing this notice of appearance was a necessary step to be undertaken by the respondent pursuant to Rule 341 and will partially allow this claim for one unit. The range available under column III for this item is 1 to 3. Given the state of the jurisprudence, I cannot find any justification for allowing the midpoint (Soprema Inc. v. Canada (Attorney General), 2023 FC 522 at para. 7). Therefore, 1 unit is allowed in consideration of the amount of work factor (Rule 409 and paragraph 400(3)(g) of the Rules).
[29] In total, 18 units are allowed for assessable services, amounting to $3,240.
IV. Disbursements
[30] The respondent claims $749.54 for printing one or two copies of documents filed in this matter. The documents were either served electronically by the appellant or prepared by the respondent. No taxes are tied to these claims.
[31] In a letter dated April 29, 2026, the appellant submits that he opposes the disbursements claimed, relying on the absence of supporting invoices. On May 4, 2026, the respondent replied that all invoices had previously been attached to the affidavit of disbursements filed on August 12, 2025, and that no additional supporting material would be filed. On May 29, 2026, the appellant maintained his opposition to payment of any of the disbursements, contending that the invoices attached to the affidavit of disbursements do not confirm that the services were rendered or that payment was made, and that they lack approval signatures. For the reasons set out below, the claims will be partially allowed.
[32] Subsection 1(4) of Tariff B establishes the standard of proof regarding disbursements, and that only disbursements found reasonable are permissible. In addition, the jurisprudence holds that disbursements must be shown to have been necessary for the conduct of the proceeding (Merck & Co. Inc. v. Apotex Inc., 2006 FC 631 [Merck] at para. 3):
Disbursements may be established by affidavit, or by submissions of counsel appearing at the assessment (subsection 1(4) of Tariff B). While invoices attached to an affidavit are one method of proving that disbursements were incurred, they are not the only method. In that regard, the assessment officer stated in Allied Signal Inc. v. Du Pont Canada Inc., [1997] F.C.J. No 993, that [20] [a]ppending to an affidavit in support of a bill of costs copies of accounts, invoices, vouchers and other justifying documentation might very well prove to be the best way to support a Bill of Costs, but it does not have to be so in all cases […] An affidavit containing just a bald statement is surely not enough to satisfy, on whatever level of proof, a Taxing Officer. But an affidavit akin to the one on record in the within file to which is appended in general fashion schedules of disbursements may prove to be enough.
[33] Accordingly, the respondent’s failure to satisfy the criteria identified by the appellant in relation to the invoices does not warrant the refusal of the claims for lack of evidence.
[34] Additionally, disallowing all the claims made for disbursements in their entirety, as proposed by the appellant, would be contrary to the applicable jurisprudence. In that regard, paragraph 26 in Carlile v. Canada (Minister of National Revenue – M.N.R.), [1997] F.C.J. No. 885, states that an assessment officer should “not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred.”
[35] Given the foregoing, I am satisfied that the affidavit of disbursements and the attached documents, together with the respondent’s submissions and the Court record, are sufficient to establish that these disbursements were paid or are payable in relation with documents filed in this matter. I also find that it was reasonable and necessary for counsel for the respondent to print one copy of each document for its own use to ensure the proper conduct of the matter, but I reach a different conclusion in respect of the second set, where claimed, as explained below (Merck at para. 3).
[36] For the purposes of the hearing, disbursements relating to a second set are claimed for some of the documents. I note that there was no requirement to bring a printed copy of any of the documents listed in the disbursement section of the bill of costs for the Court’s use at the hearing. Upon reviewing the abstract of hearing, I understand that a hard copy may have been prepared for each of the two counsel representing the respondent who attended the hearing. While it was open to the respondent to print a second set, a single set could have been shared between counsel at the hearing, rendering the second set unnecessary. Accordingly, I am of the view that the expenses relating to printing a second set do not meet the criterion of necessity required to justify imposing those expenses on the appellant.
[37] A rate of $0.13 per page is claimed, and approximately $10 per document is also sought for related printing charges. Compared with the all-inclusive rate of $0.25 recently allowed for in-house printing or photocopies, I find that the total amount claimed in this file for outsourced printing is reasonable (Clorox Company of Canada, Ltd. v. Chloretec S.E.C., 2023 FC 174 at para. 20).
[38] Finally, the number of printed pages claimed corresponds with the length of each document, except for Volume 3 of the appellant’s appeal book, in respect of which 46 pages per set are claimed in excess of the length of the document. Therefore, $5.98 (46 pages x $0.13) will be deducted from the total amount claimed for disbursements.
[39] The following additional amounts, corresponding to the costs of a second set of each of these documents, will also be deducted, in light of the finding that only one copy was necessary:
-
$19.72 (half of $39.44), concerning Volume 1 of the appellant’s appeal book;
-
$23.53 (half of $47.06) concerning Volume 2 of the appellant’s appeal book;
-
$26.90 (half of $53.80) concerning Volume 3 of the appellant’s appeal book;
-
$28.82 (half of $57.64) concerning Volume 4 of the appellant’s appeal book;
-
$50.49 (half of $100.98) concerning Volume 1 of the appellant’s book of authorities;
-
$33.11 (half of $66.22) concerning Volume 2 of the appellant’s book of authorities;
-
$95.21 (half of $190.42) concerning the respondent’s book of authorities.
[40] In summary, after subtraction of each of the disallowed amounts, a total of $465.78 is allowed for disbursements.
V. Conclusion
[41] For the above reasons, the respondent’s bill of costs is assessed and allowed in the amount of $3,705.78, payable by the appellant to the respondent. A Certificate of Assessment will be issued.
“Karine Turgeon”
Email this Content