[1] The Court, by way of judicial review, quashed resolutions by certain of the Respondents purporting to remove the Applicants from their elected positions of Chief and Band Councilor respectively and purporting to set a by-election to replace them. Costs were awarded jointly and severally as against the Respondents. I issued a timetable for written disposition of the Applicants' bill of costs.

THE RESPONDENTS' POSITION

[2] The Respondents took issue as follows with only four items:

(i) item 1 (preparation of originating document and materials) should be reduced from the maximum 7 units claimed to 5 units because the issues were not particularly complex;

(ii) item 5 (preparation for contested motion) should be reduced from the maximum 7 units claimed to 4 units because its issues also were not particularly complex;

(iii) item 8 (preparation for examination) should be reduced from the maximum 5 units claimed to 3 units because the examination lasted one hour and

(iv) item 10 (preparation for status review), claimed at the maximum 6 units, should be disallowed because the Respondents should not be liable for costs of a process necessitated solely by the Applicants' failure to proceed expeditiously and because the status review was conducted in writing without the necessity of an appearance.

THE APPLICANTS' POSITION

[3] The Applicants argued that the complexity and importance of band council resolutions coupled with the detail and volume of the supporting materials and with the lengthy consultations with counsel warrant the maximum 7 units for item 1. The amount of work that was required justifies the maximum 7 and 5 units respectively for items 5 and 8. For item 10, the Applicants asserted that they had been ready for trial and that the Court decided that the delay did not warrant a dismissal. The Respondents' materials did not establish prejudice as a consequence of delay. The status review required considerable preparation time notwithstanding its conduct in writing.

[4] The Applicants argued further to Mark M. Orkin Q.C., The Law of Costs, Second Edition, (Aurora, Ont.: Canada Law Book, 2003) at para. 222.1 (page 2-220.4) that the time spent by one counsel should not be the measure of the reasonableness of time spent by another counsel in providing representation necessary in the best interests of the latter's client. As well, the Law of Costs supra holds at para. 222.3.1 (page 2-220.11) that some courts have been reluctant to interfere in the face of assertions of excessive hours claimed for counsel's time and that some courts have said that party and party assessments of costs must acknowledge legitimate efforts of counsel relative to their clients and the courts.

ASSESSMENT

[5] I concluded at paragraph [7] in Bruce Starlight et al v. Her Majesty the Queen, [2001] F.C.J. 1376 (A.O.) that the same point in the ranges throughout the columns in the Tariff need not be used as each item for the services of counsel must be considered in its own circumstances and that some generalization is required between the available values in ranges. I will exercise discretion consistent with my approach in Grace M. Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and with the sentiment of Lord Justice Russell in Re: Eastwood (deceased) (1974), 3 ALL. E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", in sorting out a reasonable result for costs. I do not think that this was the most complex instance of litigation. I allow 6 units for item 1. I have examined the materials associated with the interlocutory motion (by the Respondents for leave to file additional affidavits) in issue: I allow 5 units for item 5.

[6] My allowance for item 1 reflected my sense for this litigation that strong feelings in a small and somewhat isolated community may have made the pre-hearing environment somewhat awkward. I allow the 5 units as claimed for item 8. As with some other steps in this litigation, the Applicants asserted the challenges facing the administration of justice in Northern Canada, including geography and limited resources, as factors affecting the process of status review. I think that an allowance is warranted for item 10, which I fix at 4 units.

[7] The Applicants' bill of costs, presented at $7,810.18, is assessed and allowed at $7,221.68.

(Sgd.) "Charles E. Stinson"

Assessment Officer

Vancouver, British Columbia

August 19, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-2212-01

STYLE OF CAUSE: DORA DUNCAN ET AL.

THE BAND COUNCIL OF BEHDZI AHDA FIRST NATION ET AL.

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES

REASONS FOR ASSESSMENT OF COSTS BY: CHARLES E. STINSON

DATED: August 19, 2004

SOLICITORS OF RECORD:

Lawson Lundell FOR THE APPLICANTS

Yellowknife, NWT

Field LLP FOR THE RESPONDENTS

Yellowknife, NWT

You are here

Duncan v. Behdzi Ahda First Nation, 2004 FC 1148

Citations2004 FC 1148

Case tabs

Citations
2004 FC 1148