Bhatnager v. Canada (Minister of Employment and Immigration), [1991] 3 S.C.R. 317

The Minister of Employment and Immigration and the Secretary of State for External Affairs Appellants

v.

Debora Bhatnager Respondent

Indexed as: Bhatnager v. Canada (Minister of Employment and Immigration)

File No.: 20771.

1991: October 2; 1991: October 17.

Present: Sopinka J.

application for review of taxation of costs

Practice ‑‑ Taxation of costs ‑‑ Application to a judge for review of registrar's decision ‑‑ No error in principle found ‑‑ Amount of time for preparation reasonable ‑‑ Application dismissed ‑‑ Rules of the Supreme Court of Canada, SOR/83‑74, r. 62.

Cases Cited

Referred to: Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211.

Statutes and Regulations Cited

Rules of the Supreme Court of Canada, SOR/83‑74, rr. 60, 62.

APPLICATION to review taxation of costs by Registrar. Application dismissed.

Eric Bowie, Q.C., and Alain Préfontaine, for the appellants.

Leonard Shore, for the respondent.

//Sopinka J.//

The following reasons for the order were delivered by

Sopinka J. ‑‑ This is an application pursuant to r. 62 of the Rules of the Supreme Court of Canada, SOR/83‑74, to review the taxation of costs of the appeal herein by the Registrar. Judgment in the appeal awarded costs to the respondent on a solicitor and client basis: 1990 SCC 120, [1990] 2 S.C.R. 217. The Registrar taxed the bills of costs and, after objection was taken pursuant to r. 60, she reconsidered the matter but reaffirmed her decision.

The issue on this review is whether the amount of time for preparation of the factum and the oral argument was reasonable. Counsel for the appellants submitted that the Registrar erred in principle by taxing the bills of costs on the basis of what would be fair and reasonable as between the client and her solicitors. He suggested that the Registrar ought to have applied the factors listed in Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.). The second error suggested by the appellants was that the Registrar failed to exercise her discretion when she deferred to counsel with respect to the time required for preparation. Counsel for the respondent submitted that the appellants were urging the Court to substitute its opinion for that of the Registrar and that there had been no error in principle.

Rule 62 authorizes a review of the decision of the Registrar and not an appeal. A judge of this Court should not generally interfere with the decision of the Registrar simply on the basis of a difference of opinion as to the proper amount to be allowed. Rather, there must be an error in principle or the Registrar must be shown to be clearly wrong in the amount allowed.

In her reasons the Registrar observed that while the time allowed for preparation can be reduced, experienced counsel are in the best position to evaluate the time required to prepare for an appeal. The Registrar reviewed the individual items in the bill that were disputed and concluded that in light of the factors in Cohen the billing of the respondent in respect to preparation could not be considered inordinately high.

The fact that experienced counsel are in the best position to evaluate the time required for preparation does not mean that the Registrar is bound to accept such an estimate. It is a factor to be considered along with the other factors listed in the Cohen case in reaching a determination as to whether the billing is reasonable. I am satisfied that this is what the Registrar did and that she did not err in principle.

Although the total time spent seems high for this type of case, the solicitors have particularized how the time was spent. These items were carefully reviewed individually by the Registrar. Counsel for the appellants was invited to challenge any particular item but candidly admitted that he was unable to show that any one item was unreasonable. Review of these items discloses that not all the time recorded was for preparation of the factum and the oral argument but included other matters including leave to appeal, preparation of the case, and virtually all the time spent from application for leave to the rendering of judgment. Neither any individual item nor the total is so high that I am able to say that the Registrar was clearly wrong or that it is the result of an error in principle.

For these reasons the application is dismissed with costs.

Judgment accordingly.

Solicitor for the appellants: John C. Tait, Ottawa.

Solicitors for the respondent: Ruby & Edwardh, Toronto.