Date: 20060517
Docket: T-588-04
Citation: 2006 FC 616
Vancouver, British Columbia, May 17, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
MARCEL LUKE HERTLEIN BALFOUR
Applicant
and
NORWAYHOUSE CREE NATION CHIEF AND COUNCIL AND RON EVANS, ERIC APETAGON, ELIZA CLARKE, FRED MUSKEGO, MIKE MUSWAGON, AND LANGFORD SAUNDERS
Respondent
REASONS FOR ORDER AND ORDER
RELEVANT FACTS
[1] In the present matter, T-588-04, the following five issues were in contention:
1. Does the Federal Court have jurisdiction in the present matter?
2. Have the elected Chief and all councillors vacated their positions?
3. Should the sub-group of Band councillors be allowed to exist?
4. Should the Band Council Resolution dated March 17, 2004 be declared void?
5. Should the applicant's honorarium be changed?
[2] On February 16, 2006, this Court ordered that the application for judicial review be granted in part. This Court concluded the following:
- Declares that the Federal Court has jurisdiction in this case;
- Declares that the Chief and all councillors did not vacate their positions;
· Orders thatthe Band Council resolution No N.H./2003-04-#128 of March 17, 2004 be quashed and the resolution be therefore without force and effect;
· Orders thatthe decision made by the NHCN Band Council to withhold all or part of the applicant's honorarium remuneration and his expense payments arising out of his status and required work as an elected NHCN councillor equivalent to those paid to other elected NHCN councillors and commensurate with applicable regulations and policies, be quashed; and the resolution and the letter regarding that decision be without force and effect;
· Declares that the applicant be re-established in his previous responsibilities with all honorarium remuneration and expenses payments arising out of his status and required work as an elected NHCN councillor equivalent to those paid to other elected NHCN councillors and commensurate with applicable regulations and policies;
· Also orders that, given that the NHCN's Council decision to deprive the applicant of his duties, responsibilities, honorarium and expenses being now quashed, the applicant shall be paid forthwith all his honorarium and expenses that were withhold, since the decision was made, notwithstanding any appeal;
· The applicant shall file and serve written submissions regarding costs no later than February 28, 2006. The respondents shall file and serve their written submissions in response, no later than March 13, 2006 and the applicant shall file and serve his reply, if necessary, no later than March 20, 2006.
APPLICANT'S SUBMISSIONS
[3] Given the fact that the applicant was successful on four out of the five issues before the Court and that the respondents were not wholly successful on the remaining issue, it is submitted that Mr. Balfour is entitled to his costs in this proceeding.
[4] Further, the applicant is entitled to solicitor-client costs considering that the respondents engaged in retaliatory and bad faith actions that had the effect of impairing the applicant's ability to continue with the present matter. Such serious misconduct, on the part of the respondents, warrants censure by this Court through an award of a lump sum of approximately $67,000, reflecting costs on a solicitor-client scale.
RESPONDENT'S SUBMISSIONS
[5] The respondents disagree with the applicant's submission that the Court found in favour of virtually all the points raised in the application for judicial review. Of the five issues before the Court, the applicant was successful on four of them. The respondents were successful on issue 2, that is, this Court found that the elected Chief and all councillors had not vacated their positions. The respondents contend that issue 2 is of equal importance to the balance of the issues with which the Court found favour with the applicant. Given that the success has been divided, the respondents submit that it would be appropriate for the Court to order each party to bear its own costs.
[6] In the alternative, costs ought to be awarded to the successful litigant on the basis set out in Tariff B pursuant to Rule 400(4).
[7] The applicant should not be awarded solicitor-client costs because there was no misconduct during or closely related to the proceedings.
[8] There exists insufficient evidence to support the claimed disbursements on the part of the applicant. In the circumstances, the Court ought not to consider excessive disbursements without proper evidence before it.
RESPONDENT ERIC APETAGON'S SUBMISSIONS
[9] Eric Apetagon submits that the only issue that he had contested in the present matter was whether or not the Chief and Band councillors had vacated their positions. He did not take issue with the other four issues raised by the applicant but had to seek independent counsel so that he could defend himself against the other respondents in relation to their conduct against the applicant.
[10] Eric Apetagon submits that he was successful in these proceedings, that the issues were important and complex, that he was not liable for the actions against the applicant as were the other respondents and that more than one set of costs should be awarded against the other respondents. He submits that the other respondents pay his costs in accordance with Tariff B.
ISSUES
[11] 1.Was the success of the judicial review divided?
2. Is the applicant entitled to solicitor-client costs?
3. Should the respondents pay Eric Apetagon's costs in accordance with Tariff B?
ANALYSIS
[12] Rules 400 to 422 deal with the issue of costs on applications for judicial review as well as in relation to actions. Rule 400(1) provides that the Court has full discretionary power over the amount and allocation of costs and the determination by whom they are to be paid. Rule 400(3) provides an extensive list of factors that may be considered in the exercise of the Court's discretion. However, the Court is not limited to these factors. Rule 400(3) states the following:
| 400. (3) In exercising its discretion under subsection (1), the Court may consider
(a) the result of the proceeding;
(b) the amounts claimed and the amounts recovered;
(c) the importance and complexity of the issues;
(d) the apportionment of liability;
(e) any written offer to settle;
(f) any offer to contribute made under rule 421;
(g) the amount of work;
(h) whether the public interest in having the proceeding litigated justifies a particular award of costs;
(i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;
(j) the failure by a party to admit anything that should have been admitted or to serve a request to admit;
(k) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(l) whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily;
(m) whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily;
(n) whether a party who was successful in an action exaggerated a claim, including a counterclaim or third party claim, to avoid the operation of rules 292 to 299; and
(o) any other matter that it considers relevant.
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400. (3) Dans l'exercice de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l'un ou l'autre des facteurs suivants :
a) le résultat de l'instance;
b) les sommes réclamées et les sommes recouvrées;
c) l'importance et la complexité des questions en litige;
d) le partage de la responsabilité;
e) toute offre écrite de règlement;
f) toute offre de contribution faite en vertu de la règle 421;
g) la charge de travail;
h) le fait que l'intérêt public dans la résolution judiciaire de l'instance justifie une adjudication particulière des dépens;
i) la conduite d'une partie qui a eu pour effet d'abréger ou de prolonger inutilement la durée de l'instance;
j) le défaut de la part d'une partie de signifier une demande visée à la règle 255 ou de reconnaître ce qui aurait dû être admis;
k) la question de savoir si une mesure prise au cours de l'instance, selon le cas :
(i) était inappropriée, vexatoire ou inutile,
(ii) a été entreprise de manière négligente, par erreur ou avec trop de circonspection;
l) la question de savoir si plus d'un mémoire de dépens devrait être accordé lorsque deux ou plusieurs parties sont représentées par différents avocats ou lorsque, étant représentées par le même avocat, elles ont scindé inutilement leur défense;
m) la question de savoir si deux ou plusieurs parties représentées par le même avocat ont engagé inutilement des instances distinctes;
n) la question de savoir si la partie qui a eu gain de cause dans une action a exagéré le montant de sa réclamation, notamment celle indiquée dans la demande reconventionnelle ou la mise en cause, pour éviter l'application des règles 292 à 299;
o) toute autre question qu'elle juge pertinente.
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1. Was the success of the judicial review divided?
[13] This Court found that the Chief and Band Council members did not vacate their positions. As such, the applicant was not successful on issue 2 of the five questions before the Court. The respondents contend that issue 2 ought to be considered the more complex and crucial of the issues before the Court as it impacted the lives of every member of the first nation as a whole. As such, the respondent submitsthat the success of the judicial review is divided and that this Court should order each party to bear its own costs.
[14] In Sunrise Co. Ltd. v. Ship "Lake Winnipeg", [1988] FCJ No. 1009, Justice James K. Hugessen wrote as follows for the Court:
Unless there has been an abuse of the court's process, a successful appellant, like a successful plaintiff, should not be penalised simply because not all the points he has taken have found favour with the court. I would accordingly give the appellants the costs of their appeal in the ordinary way, subject only to the exception which follows.
[15] Such a ruling was confirmed by Justice Carolyn Layden-Stevensonin Aird v. Country PartyVillageProperty (Mainland) Ltd.[2004] F.C.J. No. 1153:
Costs should be neither punitive nor extravagant. It is a fundamental principle that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party: Apotex Inc. v. Wellcome Foundation Ltd. (1998), 159 F.T.R. 233 (F.C.T.D.), aff'd. (2001) 199 F.T.R. 320 (F.C.A.). As a general rule, costs should follow the event. Absent an abuse of process, a successful plaintiff should not be penalized simply because not all the points advanced by the plaintiff have found favour with the court: Sunrise Co. Ltd. v. The "Lake Winnipeg" (1988), 96 N.R. 310 (F.C.A.). Regarding the importance and complexity of the issues, it is the legal significance and complexity, including the number of issues, that are to be considered and not the factual subject matter: TRW Inc. v. Walbar of Canada Inc. (1992), 146 N.R. 57 (F.C.A.); Unilever PLC v. Procter & Gamble Inc. (1995), 184 N.R. 378 (F.C.A.); Porto Seguro Companhia De Seguros Gerais v. Belcan S.A. (2001) 214 F.T.R. 291 (F.C.T.D.).
[16] I disagree with the respondents' assertion that this Court's decision can be characterized as divided success. Although this Court did not issue an order that the Chief and Band councillors vacated their positions, there was nonetheless a finding that the Chief and quorum of Council had usurped power by cancelling meetings and making decisions outside of the Council meetings. As was noted by the applicant, it was this very behaviour that was being challenged in the application for judicial review. Although this Court did not accept that the aforementioned behaviour should lead to a finding that the Chief and Council members had vacated their positions, there was nonetheless a finding that the respondents had acted improperly. Despite the fact that the applicant was only successful on four of the five questions put before the Court, the underlying factor behind all of the questions was the desire to end the undemocratic practices of the Chief and the quorum of Council. As such, I find that issue two is not on an equal footing with the other issues before the Court, and that the final decision cannot be viewed as divided success. The aforementioned finding will be taken into consideration, pursuant to Rule 400(3)(a) when awarding costs.
2. Is the applicant entitled to solicitor-client costs?
[17] The applicant maintains that he is entitled to solicitor-client costs considering that the respondents engaged in retaliatory and bad faith actions that had the effect of impairing the applicant's ability to continue with the present matter.
[18] In Mackin v. New Brunswick(Minister of Finance)[2002] 1 S.C.R. 405, the Supreme Court said the following regarding the awarding of costs on a solicitor-client basis:
It is established that the question of costs is left to the discretion of the trial judge. The general rule in this regard is that solicitor-client costs are awarded only on very rare occasions, for example when a party has displayed reprehensible, scandalous or outrageous conduct (Young v. Young, [1993] 4 S.C.R. 3, at p. 134). Reasons of public interest may also justify the making of such an order (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 80).
[19] While Rule 400 confers a broad discretion upon the Court to award costs, that discretion is not unfettered. An award of costs on a solicitor and client basis is exceptional. There must be misconduct during or closely related to the proceeding: Apotex Inc. v. Canada (Minister of National Health & Welfare) (2000), 265 N.R. 90 (F.C.A.).
[20] I disagree with the applicant's assertion that the Band Council Resolutions (BCRs) were withheld and that the respondents mislead the Court with respect to the reason why the BCRs were not produced on the morning of December 14, 2005. Once the BCRs were ordered to be produced, they were provided within a reasonable period of time without prejudice to the applicant. Although the failure to provide the BCRs at an earlier point in time was negligent and lead to an unnecessary extension of the proceeding, I find that the respondents did not deliberately mislead the Court. Furthermore, I find that the failure to submit the BCRs at an earlier point in time does not qualify as reprehensible behaviour. However, pursuant to Rules 400(3)(i) and 400(3)(k)(i), I will be taken the unnecessary extension of these proceedings into consideration when awarding costs.
[21] I agree that the following acts, mentioned by the applicant and touched upon by this Court in its decision, may be classified as reprehensible behaviour on the part of the respondents :
- The day after the notice of application was issued, the applicant was locked out of the NHCN Chief and Council building and his councillor's office therein.
- After initiating the present judicial review proceedings, two of the applicant's honorarium remuneration payments were withheld. The subsequent honorarium remuneration payments were reduced to about $189 every two weeks, or about $5,000 per year.
- The applicant's laptop computer was seized at the behest of Mr. Boudreau's clients.
[22] In exercising the Court's discretion pursuant to Rule 400(6)(c), it is my view that an award of costs on a solicitor-client basis is justified based on the above mentioned reprehensible conduct which occurred once these proceedings had begun. The respondents have displayed scandalous conduct which impaired the applicant's ability to continue the present matter. Pursuant to Rule 400(3)(h), I consider discouraging the respondents' behaviour as a matter of public interest and as such, factors into my decision to award costs on a solicitor-client basis.
3. Should the respondents pay Eric Apetagon's costs in accordance with Tariff B?
[23] The respondent Eric Apetagon submits that he was successful in these proceedings and that he was not liable for the actions taken against the applicant by the other respondents. As such, he argues that more than one set of costs should be awarded against the other respondents. He submits that the other respondents pay his costs in accordance with Tariff B.
[24] As previously mentioned, despite the fact that the applicant was only successful on four of the five questions put before the Court, the underlying factor behind all of the questions was the desire to end the undemocratic practices of the Chief and the quorum of Council. As such, I find that the issue surrounding whether or not the Chief and Band councillors vacated their positions, is not on an equal footing with the other issues before the Court, and that the final decision cannot be viewed as divided success. Therefore, the respondent Eric Apetagon cannot receive costs from the applicant.
[25] Having a proceeding commenced against him in his role as Band councillor, the respondent Eric Apetagon would normally have his legal expenses paid for by the Band. However, seeing as he could not, in good conscience, side with the Chief and Band Council's position, he undertook to be represented by separate counsel. The only position he shared in common with the other respondents was that he believed he had not vacated his position. Ultimately, he was successful on this point because this Court determined that the Chief and Band councillors had not vacated their position. Further, this Court found that he was not acting in bad faith with regards to his interaction with the applicant.
[26] Rule 400(3)(o) states that this Court can take into consideration "any other matter that it considers relevant" in the awarding of costs. I consider the respondent Eric Apetagon's actions to seek separate counsel because he could not support the Chief and Band Council's position in these proceedings to be relevant. Had he stayed with the other respondents, his costs would have been covered by the Band, however, due to his own beliefs, he sought separate representation. His actions were reasonable under the circumstances and I do not think he should be punished, by having to pay his own costs, for acting on his conscience and in good faith.As such, he is entitled to minimal costs paid for by the other respondents.
ORDER
THIS COURT ORDERS that
· The respondents, excluding the respondent Eric Apetagon, are ordered to pay jointly and severally the applicant's costs of this application on a solicitor-client basis, payable forthwith;
· The respondents, excluding the respondent Eric Apetagon, are ordered to pay jointly and severally costs to Eric Apetagon in accordance with column III of the table to Tariff B.
"Pierre Blais"
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