Pelletier v. Canada (Attorney General), 2006 FC 191

Date: 20060214

Docket: T-668-04

Citation: 2006 FC 191

Ottawa, Ontario, the 14^th day of February 2006

Present:          THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

                                                              JEAN PELLETIER

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]               This is a motion by the applicant filed pursuant to Rules 403 et seq. and Rule 369 of the Federal Court Rules, SOR/98-106 (the Court Rules) seeking directions as to costs relating to the proceedings initiated in the case at bar, and in particular costs on a solicitor-client basis. In the alternative, the applicant asked that the costs be assessed in accordance with Column V of Tariff B, as provided for in Rule 400(5) of the Court Rules, or that any other order considered appropriate by the Court be made, including the awarding of a lump sum instead of, or in addition to, costs assessed in accordance with Rule 400(4) of the Court Rules.

[2]               The applicant made no claim for relief regarding costs in his application for judicial review.

[3]               In the order dated November 18, 2005, the undersigned ruled in favour of the applicant, quashing the order dismissing the latter from his position as president of the Via Rail board of directors, but awarded no costs as no claim for relief was made in this regard:

Because no costs were requested by the applicant, no order as to costs will be made.

(See Pelletier v. Canada (Attorney General), 2005 FC 1545, [2005] F.C.J. No. 1891, para. 95.)

[4]               The applicant argued that Rules 403 et seq. allow the undersigned to award costs which have not been previously awarded in the order. The applicant based his application on Rule 403(2) of the Court Rules, which reads as follows:

(2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs.

(2) La requête visée à l’alinéa (1)a) peut être présentée que le jugement comporte ou non une ordonnance sur les dépens.

Further, the applicant relied on Bayer AG v. Apotex Inc., 2005 FCA 128, [2005] F.C.J. No. 604 (F.C.A.), in which Décary J.A. wrote for the Court at paragraph 7:

Since a party is at liberty under Rule 403 to seek to obtain or to vary an order of the Court with respect to costs, the concepts of res judicata or functus officio are simply not applicable. The judge seized with the motion must hear it and dispose of it.

[5]               The respondent categorically opposed this motion, arguing essentially that the Court did not award costs and that this was a final decision which could not be revisited by the judge pursuant to Rules 403 et seq. of the Federal Court Rules.

[6]               In the judgment rendered in this case, I decided not to award costs as no claim for relief had been made in this regard. The fact that no such claim was made by the applicant in his principal record is confirmed by the latter in his written submissions, at paragraph 4 (which should read paragraph 1 in the document).

[7]               The purpose of Rule 403 is that a party may ask the Court to give directions to the assessment officer on the allocation of costs. It seems to me that the Rule is available to the parties so as to enable a judge to clarify an order, expand it or add a clarification regarding the awarding of costs. Rule 403 is not intended to allow the judge to make a new order contrary to the first, but to enable him to give directions regarding costs to be assessed. When the Court rules that costs should not be awarded, that decision is final and it seems to me that Rules 403 et seq. cannot be used as a form of appeal to reverse an order not to award costs. If the drafter of the Court Rules had intended that to be the case, he would have said so expressly. Appellate rules are too important in our legal system not to be stated in clear language.

[8]               I do not think that Apotex, supra, is of any assistance to the applicant. The facts of that case were different. An order awarding costs had been made in the applicant’s favour and the latter relied on Rule 403 in asking that a direction be given to the assessment officer that the costs be assessed on a solicitor-client basis. The trial judge refused to grant the application for directions, considering that he did not have jurisdiction to decide the matter as it was functus officio. The Court of Appeal held that it was not functus officio and that the case should be referred back to the trial level for a decision to be made.

[9]               In this case, it was ruled that no costs would be awarded, and this is very different from the factual situation in Apotex, supra. In the case at bar, the applicant is asking me to reconsider my decision in which I did not award costs, and I am not allowed to do this by Rules 403 et seq. of the Court Rules.

[10]           Additionally, I note that in Apotex, supra, in part, at paragraph 7, Décary J.A. stated that the fact that a party waived an application for costs, which is the case here as no application was made, could be viewed as a reason sufficient for denying a motion based on Rule 303 of the Court:

He or she may form the opinion that the motion is vexatious (where, for example, prior to the making of the order the issue of costs had been fully canvassed by parties made aware of the outcome of the case or where a party had waived its right to costs) and dismiss it on that basis, but the judge cannot refuse to hear and to dispose of it.

[11]           The respondent Attorney General of Canada is seeking costs which may arise from this proceeding. Bearing in mind the particular circumstances of this case and exercising the discretion conferred on the judge in determining costs, I will not award costs and each party will pay its own costs.

ORDER

THE COURT ORDERS that:

-           the applicant’s motion be dismissed.

              “Simon Noël”               

         Judge

Certified true translation

François Brunet, LLB, BCL

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                 T-668-04

STYLE OF CAUSE: JEAN PELLETIER v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                Written motion without appearance

REASONS:               The Honourable Mr. Justice Simon Noël

DATED:                    February 14, 2006

APPEARANCES:

Suzanne Côté              FOR THE APPLICANT

Patrick Girard

Jacques Jeansonne      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Stikeman, Elliot           FOR THE APPLICANT

Montréal, Quebec

Deslauriers, Jeansonne                                      FOR THE RESPONDENT

Montréal, Quebec