Date: 20031008
Docket: T-1482-91
Citation: 2003 FC 1173
BETWEEN:
MINNIE NORMA MACNEIL and ROBERT GARRY MILLER as
representative of the heirs of the late Minnie Norma MacNeil
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the INDIAN AND NORTHERN AFFAIRS DEPARTMENT,
CHARLOTTE MILDRED MARTIN, RANDOLF LAWRENCE MARTIN, JOYCE
PATRICIA MARTIN, CHAD EVERITT MARTIN, DAVID ALLAN MARTIN, and
BRADLY KENNITH HILL
Defendants
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This assessment of costs is pursuant to the order of the Court rendered on May 11, 2001, granting Plaintiffs' motion for leave to add defendants to the within proceeding, dismissing Plaintiffs' motion for an order granting leave to further amend the amended statement of claim and awarding costs in favour of the Crown, to be assessed.
[2] Counsel for the Defendants filed the bill of costs on November 14, 2002, together with a request for an assessment without personal appearance by the parties.
[3] On March 17, 2003, I issued a letter setting a timetable for written submissions. The Plaintiffs filed their opposing documentation. The Defendants filed reply submissions.
The Defendants' Position
[4] The Defendants' submissions refer to Rules 407, 409 and Tariff B. Specifically, they rely on Rule 400(3)(a),(c),(g),(I) and (k) of the Federal Court Rules, 1998:
Discretionary powers of Court
400. (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
Factors in awarding costs
(3) In exercising its discretion under subsection (1), the Court may consider
(a) the result of the proceeding;
(c) the importance and complexity of the issue;
(g) the amount of work;
(i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;
(k) whether any step in the proceeding was
(i) improper, vexatious, or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
Rule 407 reads:
Assessment according to Tariff B
407. Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B.
Rule 409 reads:
Factors in assessing costs
409. In assessing costs, an assessment officer may consider the factors referred to in subsection 400(3).
Defendants' counsel submits the counsel fees and disbursements are reasonable under the circumstances and conservatively reflect the work performed with respect to this matter.
Plaintiffs' Position
[5] The Plaintiffs takes issue with certain points of the Defendants' submissions. The Plaintiffs refer to Rule 400(3)( c) and submit the proposed amendment to the Statement of Claim was not complex and the Affidavit material in support of the requested amendment was not lengthy nor complicated. Plaintiffs' counsel indicated the Defendants are obligated to provide the number of hours spent with respect to the preparation of a response to the contested motion and in the preparation for the examination on the affidavit in support of the motion. Finally, the Plaintiffs make reference to Defendants' counsel as being called to the bar in 1994 and submit that Defendants' counsel be considered 'junior' counsel with respect to experience. For all of the reasons mentioned, the Plaintiffs propose a reduction of the number of units claimed under Tariff B, ie. towards or at the lower end of the unit range.
Assessment
[6] I will outline my reasons for allowing or disallowing certain items as submitted by the Defendants and contested by the Plaintiffs.
[7] I do not agree with the Plaintiffs' argument that Defendants' counsel was a 'junior' counsel since Defendants'counsel was only called to the Bar in 1994 and the units claimed under Tariff B should be towards or at the lower end of the range of units available. The Tariff makes reference in the Items to first counsel, second counsel, students-at-law, law clerks and paralegals. However, no mention is made of 'junior' counsel in the Tariff and I do not consider this argument relevant to the work performed to present the Defendants'case in the hearing of this motion.
[8] As mentioned above, the Plaintiffs take issue with the Defendants' position that this proposed amendment to the Statement of Claim was not complex and the affidavit material in support of the requested amendment was not lengthy nor complex. The Defendants argue in the Reply Costs Submissions that the amendment includes the allegations of breach of fiduciary duty which was pleaded for the first time in the ten years of this litigation. Defendants' counsel indicates that it required a considerable amount of research on this complex issue. It is here that I would like to refer to Grace M. Carlile v. Her Majesty the Queen, (1997) F.C.J. No. 885 (T.O.):
Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. ...
Further, Phipson on Evidence, Fourteenth Edition (London: Sweet and Maxwell, 1990) at page 78, paragraph 4-38 states that the " standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars on the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donation of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd ....
I agree with the position of the Defendants and note counsel has not requested the maximum amount allowed under Tariff B, Item 5, Column III. The 5 units requested ($550.00) are allowed for this item. In the same vein as Carlile supra, I allow Item 8 at 3 units ($330.00).
[9] In the absence of a direction from the Court, notwithstanding the absence of any objection from the Plaintiffs, I disallow Item 24. .
[10] I note the Defendants are claiming 2 units for Item 6 at 4.5 hours for the appearance at the motion on May 10, 2001. The motion took approximately 2 hours and I speculate that about one half-hour was spent checking in with the Court Registrar and cleaning up after the hearing which roughly adds up to 2.5 hours. I can only further speculate that Defendants' counsel believe they are entitled to fees for two counsel attending on the motion. However, I can find no direction of the Court allowing two counsel to deal with this matter. Therefore, I only allow 2 units at 2.5 hours ($550.00).
[11] This assessment of the bill of costs went by way of written submissions and I agree with the Plaintiffs' counsel that Item 26 should be reduced to 2 units ($220.00).
[12] Plaintiffs' counsel take no issue with the disbursements claimed by the Defendants and they are allowed as presented at $588.16.
[13] The bill of costs in T-1482-91 is assessed and allowed in the amount of $2,678.16 which includes the assessable services and uncontested disbursements. A certificate is issued in this proceeding for $2,678.16.
"Paul Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
October 8th, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1482-91
STYLE OF CAUSE: MINNIE NORMA MACNEIL and ROBERT GARRY MILLER as representative of the heirs of the late Minnie Norma MacNeil
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the INDIAN AND NORTHERN AFFAIRS DEPARTMENT, CHARLOTTE MILDRED MARTIN, RANDOLF LAWRENCE MARTIN, JOYCE
PATRICIA MARTIN, CHAD EVERITT MARTIN, DAVID ALLAN MARTIN, and BRADLY KENNITH HILL
ASSESSMENT WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS
REASONS BY: PAUL G.C. ROBINSON
DATED: October 8th, 2003
SOLICITORS OF RECORD: G.T. Tillman and Carol l. Godby
Harrison Pensa LLP,
London, Ontario
For the Plaintiffs
Morris Rosenberg,
Deputy Attorney General of Canada
Per. Jennifer Roy, Toronto, Ontario
Toronto, Ontario
For the Defendants
FEDERAL COURT
Date: 20031008
Docket: T-1482-91
BETWEEN:
MINNIE NORMA MACNEIL and ROBERT GARRY MILLER as representative of the heirs of the late Minnie Norma MacNeil
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the INDIAN AND NORTHERN AFFAIRS DEPARTMENT,
CHARLOTTE MILDRED MARTIN, RANDOLF LAWRENCE MARTIN, JOYCE PATRICIA MARTIN, CHAD EVERITT MARTIN, DAVID ALLAN MARTIN, and BRADLY KENNITH HILL
Defendants
ASSESSMENT OF COSTS - REASONS
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