Grismer v. Squamish First Nation, 2006 FC 1398

 

 

 

 

Date: 20061117

Docket: T-1509-04

Citation: 2006 FC 1398

Ottawa, Ontario, November 17, 2006

PRESENT:     The Honourable Mr. Justice Martineau

 

BETWEEN:

ALICE MAXINE JAIME GRISMER and

ALEXIS JORDANA MCIVOR-GRISMER

Applicants

and

 

SQUAMISH INDIAN BAND

A.K.A. SQUAMISH NATION COUNCIL

Respondent

 

 

 

REASONS FOR ORDER AND ORDER

 

[1]               This is a motion in writing by the applicants for directions under subsection 403(3) of the Federal Courts Rules, SOR/98-106 (the Rules) with respect to an order rendered September 12^th, 2006, wherein I dismissed the applicants’ application for judicial review, with costs awarded to the respondent.

 

[2]               In coming to my conclusion, I found that although certain provisions of the respondent’s Membership Code were discriminatory under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),

1982, c. 11 (the Charter), they were nonetheless saved under section 1 of same. In light of this finding, it was unnecessary to decide whether the respondent’s right to control membership was an “aboriginal right” within the meaning of subsection 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Constitution Act, 1982), or alternatively, an “other right” as contemplated by section 25 of the Charter, that could not be abrogated or derogated from by subsection 15(1) of the Charter (Grismer v. Squamish First Nation, 2006 FC 1088).  Accordingly, I dismissed the judicial review application “with costs payable to the respondent”.

 

[3]               The applicants now seek directions for costs pursuant to Rule 403, which reads as follows:

 

[4]               Specifically, the applicants submit that each party should assume its own costs, given the parties’ divided success (CCH Canadian Ltd. v. Law Society of Upper Canada, [2000] F.C.J. No. 92 (QL)). In support of their position, they contend that they successfully argued that they were discriminated against contrary to section 15 of the Charter. Although the respondent succeeded in its section 1 argument, it failed to establish the existence of an aboriginal right under section 35 and did not succeed with regards to its section 25 argument. Given their divided success, each party should bear its own costs. Furthermore, the applicants argue that the respondent should bear the cost of Dr. Dorothy Kennedy’s affidavit and expert report, as it was submitted in support of its section 35 argument, which was ultimately not considered by the Court. In the alternative, the applicants ask that a lump sum order taking into account the success of both parties be made under Rule 401. Finally, they request that directions be given to the assessment officer respecting costs for photocopying and Quicklaw searches.

 

[5]               I will first address the issue of whether the present motion for directions was validly brought under Rule 403. In this regard, the respondent contends that the Court has no jurisdiction to make any of  the directions sought here by the applicants. Essentially, it is submitted that the Court is functus officio because costs have already been granted in favour of the respondent. Relying on Canada v. Canadian Pacific Ltd., 2002 FCA 98, the respondent argues that the applicants are in effect asking the Court to reconsider its judgment and that such a motion should have been filed under Rule 397 within 10 days after the making of the order.

 

[6]               According to the case law, where the Court has awarded “costs”, a motion under Rule 403 is available and constitutes a motion to vary an order of the Court with respect to costs (Bayer AG v. Apotex Inc., 2005 FCA 128 at paragraph 7; Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc. (C.A.) [2003] 2 F.C. 451, 2002 FCA 417; Maytag Corp. v. Whirlpool Corp., 2001 FCA 250). A Court may then make directions for the assessment of costs, provided that it is not inconsistent with the original order (Pelletier v. Canada (Procureur général), 2006 CF 191).

 

[7]               I note that in ITV Technologies, Inc. v. WIC Television Ltd., 274 F.T.R. 94, 2005 FC 744, the Court stated, at paragraph 20:

Clearly, some suggested variations such as completely denying a party costs when they had previously been granted go too far - they are utterly inconsistent with the Court's initial order. However, I can see no difference in principle, in the context of a motion for directions pursuant to Rule 403, between limiting one party's costs to a certain time frame versus granting a lump sum increase to one party versus adjusting the scale of costs. Whether these purported variations are to be considered inconsistent with the original order and thus in my opinion outside the scope of the Court's discretion under Rule 403, is a question to be determined in the particular circumstances of each case, and in light of the specificity of the original order that was rendered. As Rule 400 confirms after all, costs are primarily a matter of discretion.

[8]               Generally, costs are awarded to the successful party (Merck & Co. v. Novopharm Ltd. (1998), 152 F.T.R. 74 (F.C.T.D.) However, Rule 400 provides that the Court has full discretionary

power over the amount and allocation of costs and the determination of by whom they are to be paid.

[9]               In exercising its discretion, the Court may consider the factors listed under subsection 400(3) of the Rules:

 

 

[10]           Essentially, the applicants submit that I should reconsider my previous order awarding costs to the respondent.  In this regard, I should give particular weight to the factors mentioned at paragraphs 400(3)(h) and (o) in exercising my discretion with regards to costs. Indeed, the applicants contend that there was public interest in having the proceeding litigated in the absence of

any rulings on the application of the Charter to Band Membership Rules promulgated under section 10 of the Indian Act, R.S.C. 1985, c. I-5. They also submit that the respondent’s proposed billing for costs in the amount of $28,012.90 is punitive given the nature of the application. Furthermore, both applicants are university students and Jaime Grismer is a working single mother of three children.   Therefore, the applicants argue that each party should assume its own costs.

 

[11]           In my view, if I were to direct today that each party assume its own costs, such a direction would be inconsistent with the original order, which stated that costs are payable to the respondent. In the particular circumstances of this case, although I found that there was discrimination, the application for judicial review could not succeed in view of the fact that such discrimination could be justified under section 1 of the Charter.  Accordingly, the application for judicial review was dismissed.  In this sense, there was no divided success.  In the result, the respondent won and I simply did not need to dispose of the other arguments made by the respondent.   The result of the

proceeding was certainly a key factor in the exercise of my discretion to allow costs to the respondent.

[12]           Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B and I see no reason to deviate from this general rule.  Moreover, I am not in a position today to award a lump sump in lieu of any assessed costs. That being said, in assessing the costs payable to the respondent, the assessment officer may consider the factors referred to in subsection 400 (3) of the Rules, including any other relevant factor raised by the applicants in their motion for directions.  Furthermore, with respect to the costs relating to photocopying and Quicklaw searches, I am of the view that these issues are better left in the hands of the assessment officer (Campbell v. The Queen, [1984] C.T.C. 105, 84 D.T.C. 6164 (Fed. T.D.)).

 

[13]           Finally, the applicants have asked that costs related to Dr. Kennedy’s affidavit and expert report (collectively the “report”) be excluded from the proposed bill of costs submitted by the respondent. The main objective of the report was to answer questions submitted by respondent’s counsel relating to the Squamish membership practices prior to contact with Europeans. Earlier in the proceedings, the applicants unsuccessfully contested the inclusion of the report in the file. The respondent submits that the report was a reasonable disbursement. Although I do not find the respondent’s use of the expert report to be unreasonable, in the exercise of my discretion and taking into account all relevant factors, I am prepared to exclude all costs and disbursements related to the expert report. In my view, a direction that such costs and disbursements be excluded by the assessment officer would not be inconsistent with the original order. In coming to this conclusion, I have considered inter alia the fact that the respondent submitted the report “as evidence relevant to the aboriginal rights claim” (Motion Record of the Respondent, dated November 10, 2004, at page 97). Ultimately, I did not find it necessary to decide whether the respondent’s right to control membership was an “aboriginal right” within the meaning of subsection 35(1) of the Constitution Act, 1982, or alternatively, an “other right” as contemplated by section 25 of the Charter, that cannot be abrogated or derogated from by subsection 15(1) of the Charter.

 

ORDER

 

THIS COURT ORDERS:

 

1.                  The motion for directions under subsection 403(3) of the Rules is allowed in part; and,

2.                  Costs awarded to the respondent pursuant to the order rendered September 12, 2006, shall be assessed by the assessment officer in accordance with column III of the table to Tariff B.  In assessing such costs, the assessment officer may consider factors referred to in subsection 400 (3) of the Rules, including any other relevant factor raised by the applicants in their motion for directions. Moreover all costs and disbursements related to Dr. Dorothy Kennedy’s Affidavit and expert report shall be excluded by the assessment officer.

 

“Luc Martineau”

 

 

 

FEDERAL COURT

                                                                

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

 

DOCKET:                                          T-1509-04

 

STYLE OF CAUSE:                          Alice Maxine Jaime Grismer et al. and Squamish Indian Band a.k.a. Squamish Nation Council

 

 

PLACE OF HEARING:                    Motion in writing

 

 

 

REASONS FOR ORDER

AND ORDER:                                   MARTINEAU,  J.

 

DATED:                                             November 17, 2006

 

 

 

SOLICITORS OF RECORD:

 

Ms. Sharon D. McIvor Merritt, British Columbia	FOR THE APPLICANT
John R. Rich and F. Matthew Kirchner Ratcliff & Company North Vancouver, B.C.	FOR THE RESPONDENT