Canada v. Ipsco Recycling Inc., 2004 FC 1083

Date: 20040806

Docket: T-2274-00

Citation: 2004 FC 1083

Ottawa, Ontario, Friday, the 6^th day of August 2004

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                               HER MAJESTY THE QUEEN

                                                                                                                                  Applicant

                                                                    - and -

                           IPSCO RECYCLING INC. and GENERAL SCRAP &

CAR SHREDDER LTD., now known as JAMEL METALS INC.,

carrying on business as a partnership under the firm name and style of

GENERAL SCRAP PARTNERSHIP and XPOTENTIAL PRODUCTS INC.,

JACOB LAZARECK AND MELVIN LAZARECK

                                                                                                                            Respondents

         SUPPLEMENTAL REASONS FOR ORDER WITH RESPECT TO COSTS

DAWSON J.

[1]                On December 23, 2003, the Court rendered reasons for order and order ("reasons for order") in this matter dismissing Her Majesty The Queen's application for injunctive relief and reserving the issue of costs. Counsel for the respondents was directed to request a teleconference for the purpose of discussing how the outstanding issue of costs was to be dealt with.

[2]                More than one such teleconference was held, and it ultimately evolved that the Crown does not dispute the entitlement of the respondents to some order of costs. However, there are six issues in dispute. Counsel for the parties believe that determination by the Court of those issues will likely enable them to agree upon the appropriate fees and disbursements to be paid to the respondents.

[3]                As a result, additional affidavit evidence, a draft bill of costs and written submissions with respect to the outstanding issues were filed. The Court then heard oral submissions with respect to five of the outstanding issues, and received written submissions with respect to the sixth issue. These reasons set out the Court's determination with respect to those six issues.

THE DISPUTED ISSUES

[4]                The six issues in dispute are as follows:

1)          Are the respondents entitled to recover monies paid by way of fees to experts where the fees related to services performed prior to the commencement of the application?

2)          Are the respondents entitled to an additional award of costs in respect of the individual respondents Jacob Lazareck and Melvin Lazareck?

3)          Are the respondents entitled to an award of double party-and-party costs from the date of a written settlement offer, pursuant to Rule 420 of the Federal Court Rules, 1998 ("Rules")?

4)          Is the applicant entitled to a global reduction in the award of costs on the basis of mixed success?

5)          Is the applicant entitled to a reduction in the award of costs due to the public interest in having the proceedings litigated?

6)          Are the respondents entitled to costs assessed at the top of Column V of the table to Tariff B of the Rules?

ANALYSIS

1. Are the respondents entitled to recover monies paid by way of fees to experts where the fees related to services performed prior to the commencement of the application?

[5]                At paragraphs 113 through 132 of the reasons for order a general description was given of the evidence of the expert scientists and engineers retained to assist the respondents with respect to this application. Significant fees were paid to those professional advisors.

[6]                The Crown agrees that the respondents are entitled to recover costs paid to their experts in respect of services performed after this application was commenced, but says that monies paid to those advisors for services that pre-date the commencement of this application are not recoverable because the fees were not incurred in order to assist the Court in the resolution of the litigation ("disputed disbursements").

[7]                The Crown asserts that the disputed disbursements were not incurred to assist the Court because there was no litigation extant at the time the services which gave rise to the disputed disbursements were performed, nor was there any certainty that there would be litigation. Rather, the Crown argues that the disputed disbursements were incurred for the singular purpose of resisting the enforcement by Environment Canada of the Canadian Environmental Protection Act, 1999, 46-47-48 Eliz. II, c. 33 ("Act") and the associated Storage of PCB Material Regulations, SOR/92-507 ("Regulations"). Thus, the Crown argues that had Environment Canada been satisfied that the respondents' experts were correct, so that efforts to enforce the Regulations ceased, the respondents would have had no basis upon which to recover the disputed disbursements. Similarly, the Crown says that had the parties otherwise settled the matter prior to the institution of litigation, or, had the Crown chosen to charge the respondents with offences under the Act, the respondents would have had no basis for recovering the disputed disbursements.

[8]                The Crown places reliance upon the remarks of my colleague, Mr. Justice Rouleau in RCP Inc. v. Minister of National Revenue and Deputy Minister of National Revenue for Customs and Excise, [1986] 1 F.C. 485 at page 5. There, Mr. Justice Rouleau wrote:

Many times through their careers counsel will be retained by parties who will negotiate disputes, argue, and discuss for months, even years, before arriving at a solution without coming before the courts. In those cases no one seeks costs let alone expects the Court to award any. Costs can only be considered from the time litigation is initiated. [underlining added]

[9]                In my respectful view, the Crown is in error in relying upon the comments of Mr. Justice Rouleau in RCP Inc. in order to argue that disbursements pre-dating the commencement of an application may not be recovered. In RCP Inc. Mr. Justice Rouleau was concerned with services rendered by counsel and whether to order costs on a solicitor-client basis. His comments ought not to be extrapolated from counsel fees to disbursements. See, for example, Carr v. Canada (Minister of National Revenue), [1996] 2 C.T.C. 100 (F.C.A.) at paragraph 3.

[10]            The entitlement to disbursements is governed by subsection 1(4) of Tariff B to the Rules which provides that:

[11]            I am satisfied that a reasonable disbursement may be one incurred prior to the commencement of a proceeding. In this regard, in Carr, supra the Federal Court of Appeal concluded that a disbursement incurred prior to the commencement of an appeal to the Tax Court of Canada might be recovered if it could be shown that the disbursement was never the less "essential for the conduct of the appeal". That wording came from the applicable provision of the Tax Court of Canada Rules of Practice and Procedure (Income Tax Act) which read:

[12]            Applying this principle to the rules of the Federal Court, a disbursement incurred prior to the commencement of an application could be recovered if "it is reasonable and it is established by affidavit or by the solicitor appearing on the assessment that the disbursement was made or is payable by the party". A similar conclusion has been reached by Assessment Officer Stinson in: Williams v. Canada (Minister of National Revenue), 2001 FCT 106 at paragraph 20; Mitchell v. Canada (Minister of National Revenue), [2003] F.C.J. No. 1530 at paragraph 13.

[13]            The respondents have established that the disputed disbursements have been paid. Therefore, I turn to consider whether the disbursements were "reasonable" as contemplated by subsection 1(4) of Tariff B. This, in turn, requires consideration of whether they ultimately advanced the litigation (see: Mitchell, supra at paragraph 13).

[14]            The disputed disbursements are generally as follows:

i)           Invoices from Dillon Consulting Limited from February 3, 1999 to the commencement of the application on December 6, 2000;

ii)          Invoices from Enviro-Test Laboratories (Dr. Birkholz) from December 1998 to December 6, 2000;

iii)          Invoices from Matrix Consultants Limited (Mr. Merks) from August 11, 1999 to December 6, 2000.

[15]            No claim is made for fees paid to Wardrop Engineering Inc. on the basis that those fees were paid as the respondents did their "due diligence" to satisfy themselves, Manitoba Conservation, and to some extent Environment Canada that the automobile shredder residue ("ASR") was not PCB material. Similarly, no claim is made for the initial testing which was shared with Environment Canada in January of 1998. The respondents seek to recover disbursements for expert costs incurred from December 1998 onward.

[16]            The history of the dispute between the parties was described at paragraphs 18 through 40 of the reasons for order. By December of 1998 Wardrop Engineering Inc. had produced two reports which concluded that the PCB concentration of the ASR was below the regulatory threshold, but Environment Canada had prepared a report that identified PCB at mean concentrations above the regulatory limit. Environment Canada had withdrawn the determination it had made on the basis of its report which required the respondents to store ASR in compliance with the Regulations. While Environment Canada had withdrawn its determination that the ASR contained PCB material, Environment Canada remained of the view that the ASR contained PCB materials which were being stored in violation of the Regulations. Illustrative of this position are Environment Canada's counsel's letters of March 20, 1998 and November 20, 1998. By letter dated September 2, 1998 Environment Canada advised that it intended to re-inspect the General Scrap and XPotential premises "in the near future". A copy of the revised sampling and analytical protocols to be used was enclosed, and written comments on the sampling and analytical plan were invited by September 10, 1998. By letter dated September 10, 1998 counsel for the respondents advised that the one week timeframe was unreasonable and he did not expect to be able to respond before the end of September. By letter dated September 11, 1998 Environment Canada advised that the re-inspection and sample collection would commence on September 21, 1998.

[17]            Environment Canada's second sampling was conducted in late September from September 21 to 25, 1998. The respondents' expert Dr. Birkholz continued to be critical of Environment Canada's sampling and analysis methodology.

[18]            Environment Canada's second report based on its second sampling was issued in January of 1999 and was provided to General Scrap on February 8, 1999. After delivery of that report Environment Canada continued to threaten enforcement proceedings (see, for example, its letters of April 30, 1999, June 28, 1999, July 20, 1999 and August 18, 1999).

[19]            Robert J. Schutzman, the Director of Environmental Affairs for Canada for IPSCO Inc., the parent corporation of the respondent IPSCO Recycling Inc., swore an affidavit relevant to the disputed disbursements. In it he swears at paragraphs 11 and 12:

11.            Based on the advice of Dr. Detlef Birkholz and the advice of counsel, in December of 1998, the Respondents determined that it was necessary to retain Dillon to respond to Environment Canada's continuing enforcement actions. By that time, based on the positions that had been taken by Environment Canada, the Respondents fully expected that Environment Canada would initiate a prosecution or a civil claim against the corporate Respondents unless the Respondents agreed with Environment Canada's contention that PCB materials were being stored in contravention of the Regulations and implemented a plan to store or dispose the ASR at issue in the manner prescribed by the Regulations and CEPA.

12.            As a result, at that time it was determined by the Respondents, relying upon the advice of counsel, that there was a need to retain independent experts to assist in the preparation of a defence to any legal action that might be undertaken by Environment Canada. It was also determined by the Respondents that in order to overcome Environment Canada's positions and investigation results it was necessary to conduct an exhaustive program of sampling and analysis of the ASR at issue. Such a course of action was the only way in which to conclusively demonstrate, in support of the defence of the Respondents to the anticipated litigation, that the ASR at issue was not PCB material and that therefore there was no violation of the Regulations and CEPA.

[20]            Mr. Schutzman was not cross-examined on that statement. I accept his unchallenged evidence.

[21]            I am satisfied on all of the evidence before the Court that by December 1998 the respondents had reasonably concluded that Environment Canada was not prepared to accept that its sampling methodology was inappropriate or flawed, that enforcement proceedings were likely and that it was therefore prudent for the respondents at that time to retain experts and incur expense before contemplated enforcement action was initiated by Environment Canada. The development and implementation of sampling and analysis procedures are not done overnight, as reflected in the time lapse between Environment Canada's sampling and the completion of its reports. It was therefore prudent that the respondents not wait for a prosecution or injunction proceeding to be commenced before marshalling the response of their experts.

[22]            On the basis of Mr. Schutzman's evidence and the expert opinions put before the Court I also find that the disputed disbursements were incurred in respect of the very issues that were litigated in this application, and that the opinions generated by the respondents' experts were used in the application and were of significant assistance to the Court. The opinions of Mr. Clark of Dillon Consulting Limited and Mr. Merks of Matrix Consultants Limited were central to the Court's ultimate conclusion that the Crown failed to meet its burden to establish that the respondents had improperly stored PCB material.

[23]            It follows from these conclusions that, in my view, the disputed disbursements were reasonable within the contemplation of subsection 1(4) of Tariff B. The respondents should be entitled to recover them from the Crown.

[24]            In so concluding, I have carefully considered the Crown's submission that while some enforcement proceeding was inevitable, civil litigation was not inevitable. I accept that it may well be that if Environment Canada had commenced a prosecution under the Act the respondents in defence of the prosecution would have relied upon the same experts and the same services, but that in that forum the respondents would have had no opportunity to recover those costs. However, when the Crown decided to proceed civilly for injunctive relief the respondents were deprived of their rights to: disclosure of the Crown's case; the presumption of innocence; and proof of the Crown's case beyond a reasonable doubt. The Crown's decision also exposed the respondents to a significant award of costs against them if the Crown's application succeeded. Having elected to pursue a remedy in this Court where cost consequences generally follow the result, the Crown is in my view obliged to pay the respondents reasonable disbursements whether or not they would have been payable had the Crown elected a different forum.

2. Are the respondents entitled to an additional award of costs in respect of the individual respondents Jacob and Melvin Lazareck?

[25]            In its reasons for order the Court found that there was no evidence that either individual respondent owned, controlled or possessed material at the General Scrap site. It followed that there was no basis in the evidence for any liability on the part of either individual respondent. The respondents therefore seek an additional lump sum award of costs on the basis that it was improper and unnecessary to name Melvin and Jacob Lazareck as respondents.

[26]            I endorse the comments of Justice Ground in Aspiotis v. Coffee Time Donuts Inc., [1995] O.J. No. 419 (Ont. Gen. Div.) that it is an abuse of process to name business persons as parties to litigation where there is no foundation for a claim against them in their personal capacities. Such conduct may in an appropriate case attract an increased award of costs.

[27]            I am not satisfied, however, that such an award is appropriate in this case for two reasons. First, there is no evidence that the respondents incurred any significant additional costs as a result of the addition of the individual respondents as parties. Second, the respondents, as they were entitled to do, did not lead detailed affidavit evidence with respect to the corporate ownership structure. I accept that it was at the hearing of this application during the cross-examination and re-direct examination of Jacob Lazareck that the evidence emerged that (at least at the time of the hearing) there was no basis for individual liability. While it would have been preferable for the Crown at that time to have offered to discontinue against the individual respondents, I am not satisfied that the Crown's failure to do so at that relatively late stage in the proceeding should be sanctioned with an award of costs.

3. Are the respondents entitled to an award of double party-and-party costs from the date of a written settlement offer?

[28]            On February 12, 2001, the respondents offered in writing to settle the application by removing a quantity of ASR material (to be identified by their consultants) from 11 locations, some of which were at the X-Potential site while some were at the General Scrap site. The material removed would have been managed in accordance with the Regulations. Subsequent offers were made that included disposal of some ASR at a properly licensed off-site disposal facility as if the ASR was PCB material, and one offer proposed construction of an earthen containment cell for the disposal of a significant quantity of ASR.

[29]            The Crown does not dispute that the offers were bona fide offers within the scope of Rule 420 that contained a genuine element of compromise. None of the offers were withdrawn. None of the offers were accepted. Rules 419 and 420 provide:

[30]            The respondents say that because the application was dismissed there is no basis upon which to depart from the ordinary application of Rule 420. The respondents seek double party-and-party costs from February 12, 2001 until December 23, 2003.

[31]            The Crown argues that the Court should exercise its discretion and order that the respondents not receive double party-and-party costs because of Environment Canada's statutory mandate to ensure compliance with the Regulations. It is said that Environment Canada's sampling and analysis led it to conclude that the respondents were storing PCB material in contravention of the Regulations. It is argued in that circumstance that if Environment Canada had accepted the respondents' offer Environment Canada would have entered into an agreement whereby it agreed not to enforce the Regulations.

[32]            With respect, Environment Canada would only be entering into an agreement not to enforce the Regulations if in fact the respondents were in breach of the Regulations. The Crown's argument is thus premised upon the assumption that the ASR was PCB material. However, as the Crown argued above in respect of the first issue, one possible outcome was that Environment Canada could have concluded that the respondents' experts were correct and the ASR was not PCB material.

[33]            The nub of the dispute between the parties was a dispute between their respective experts about the correct science as it related to sample selection and methodology. A key area of the dispute was whether statistical inferences were relevant in order to determine whether the ASR contained PCBs in excess of the regulatory threshold. Environment Canada rejected criticism of its sampling and analysis protocol, and in June of 2000 declined to provide requested comment about the respondents' proposed sampling and analytical plans. Ultimately, the Court found that compared to the sampling plan and methodology of the respondents, Environment Canada: used a sampling plan that was inferior to that implemented by Dillon Consulting Limited; departed from its own sampling plan with respect to the West Pile at General Scrap; used an inferior method of sample selection; used an inferior sampling methodology; inappropriately relied upon individual sample results; and failed to apply any statistical analysis to the sampling results for the purpose of making inferences about the parent population.

[34]            It was Environment Canada's right to rely upon its own sampling and analysis protocol and to refuse to entertain any compromise. However, Environment Canada's adherence to its own methods and rejection of the respondents' sampling plan and methodology are not, in my view, a basis for departing from the normal consequences of Rule 420. The respondents should therefore be entitled to double party-and-party costs from the date of the first settlement offer.

4. Is the Crown entitled to a global reduction in the award of costs on the basis of mixed success?

[35]            While the respondents succeeded on the ultimate question of whether an injunction should issue, the Crown's arguments were successful on a number of issues surrounding the proper interpretation of the Act. By way of example, the Court accepted the Crown's arguments with respect to the considerations that govern the exercise of the Court's discretion under subsection 311(1) of the Act, and rejected the respondents' arguments with respect to the standard of proof. On this basis, the Crown argues that success was divided so that the respondents' costs should be reduced. The Crown suggests that an award based on a 60% measurement of success in favour of the respondents is appropriate.

[36]            In Sunrise Co. Ltd. v. Ship "Lake Winnipeg" (1998), 96 N.R. 310; reversed in part, but not on this point [1991] 1 S.C.R. 3, the Federal Court of Appeal considered in additional reasons the appropriateness of a distributive award of costs such as that now sought by the Crown. At paragraph 29, Mr. Justice Hugessen wrote as follows for the Court:

While it is true that the appeal on liability, though unsuccessful, occupied the greater part of the time of the hearing, I do not think that that is any reasons for departing from the general rule and depriving the successful appellants of their costs. To do so would be to set an unfortunate precedent, which might result in much lost judicial time making fine distinctions. 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. [underlining added]

See also: AlliedSignal Inc. v. Du Pont Canada Inc., [1998] F.C.J. 551 (T.D.); Algoma Central Corp. v. Prestigious (The) (1994), 84 F.T.R. 1 (T.D.).

[37]            In the present case, I similarly conclude that the general rule should be applied so that the respondents recover their entire costs without reduction. I am satisfied that there was really only one issue in this case: whether a permanent, mandatory injunction should issue against the respondents. The respondents were successful in resisting the imposition of an injunction. While not every argument the respondents advanced was successful, the respondents only raised such arguments as an adjunct to their fundamental position that the ASR did not contain PCB material and that was the issue upon which the decision turned.

[38]            Before leaving this issue, I observe that the Ontario Court of Appeal has doubted whether a distributive award of costs is ever appropriate because such an approach works at cross-purposes with the offer to settle rules. Offers to settle rules are result-orientated, not issue-orientated, and in the words of the Ontario Court of Appeal "[w]hy make an offer of settlement equivalent to a gross judgment if the trial judge is going to allocate costs by success on issues?". See: Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 5 O.R. (3d) 1 at page 9. The Ontario Court of Appeal went on in Armak to remark:

Further, in such a complex and intricate field of law no litigant should be discouraged from putting forth a novel proposition. At the same time, every litigant should be encouraged to be single-minded in attention to the need to make and consider reasonable offers which may dispose of the litigation.

[39]            In my view those comments are apposite to the present case.

5. Is the applicant entitled to a reduction in the award of costs due to the public interest in having the proceedings litigated?

[40]            In oral argument counsel for the Crown framed this argument as a global argument based upon the coming together of what was characterized as the mixed success, the novelty of the issues raised together with the public interest in having the applicable legislation interpreted, and the statutory obligation of Environment Canada to enforce the Act and Regulations. I have previously disposed of the Crown's arguments based on mixed success and the duty to enforce the legislation. In my view, the fact that this was the first proceeding brought under subsection 311(1) of the Act does not justify any reduction in the costs otherwise due to the respondents. There is no reason for the respondents to subsidize by a reduced award of costs whatever public interest might exist in having the legislation judicially considered.

6. Are the respondents entitled to costs assessed at the top of Column V of the table to Tariff B of the Rules?

[41]            Counsel agree that the complexity of the issues raised justifies an award of costs under Column V, but differ as to where within that column costs should be awarded. Not surprisingly, the respondents submit that the costs should be in an amount equivalent to the maximum amount provided under Column V. The Crown asserts the minimum amount provided under Column V would be appropriate.

[42]            The Court has full discretionary power over the amount of costs, and Rule 400(3) sets out the factor which the Court may consider in the exercise of its discretion. Costs are to be neither punitive nor extravagant, and Tariff B strives to balance compensating a successful party against not unduly burdening the unsuccessful party (see: Apotex Inc. v. Wellcome Foundation Ltd. (1998), 159 F.T.R. 233 (T.D.); aff'd (2001), 199 F.T.R. 320 (C.A.)). Column III level costs are considered to address a case of average complexity (see Rule 407). When considering whether to increase the scale of costs the Court is to consider the complexity of legal issues. (See: TRW Inc. v. Walbar of Canada Inc. (1992), 43 C.P.R. (3d) 449 (F.C.A.)).

[43]            In the present case, I am satisfied the factors relevant to the Court's exercise of discretion are: the result obtained; the amounts at issue in terms of the consequences to the respondents if unsuccessful; the amount of work required; the volume and nature of the complex technical evidence; and the importance of the issues from a legal standpoint. Those factors, in my view, justify an award of costs based upon Column V.

[44]            Having regard to the draft bill of costs filed by the respondents, an award of costs at the high end of Column V would approximate $73,500, while awards at the mid and low point of that column would approximate, respectively, $54,000 and $35,250. Considering the complexity of the expert testimony it is clear that a considerable amount of work was required in order to put the expert evidence before the Court and in order to cross-examine the Crown's expert. The hearing was highly organized and proceeded smoothly which is a further indicator of substantial preparation by counsel. In the exercise of my discretion, considering the factors set out above and particularly the amount of work required, I consider that an assessment above the mid-point and toward the high end of Column V is appropriate. I am not satisfied that the application was of such legal or factual complexity as to justify assessment at the top of Column V.

[45]            Pursuant to Rule 400(4) I would therefore award a lump sum of $60,000 in lieu of costs assessed toward the high end of Column V. For the purpose of the award of double party-and-party costs, $1,100 of the lump sum would be attributable to Tariff item 2, while the balance would relate to the tariffs items 10, 11, 12, 13(a), 13(b), 14(a), 14(b), 15, and 26.

CONCLUSION

[46]            With the benefit of these reasons it is hoped that counsel will be able to calculate and settle upon the appropriate award of costs based on these reasons. Counsel should correspond with the Registry or request a further teleconference within three weeks of the date of these reasons in order to advise as to whether anything further is required.

"Eleanor R. Dawson"

                                                                                                                                         Judge                       

                                                        FEDERAL COURT

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               T-2274-00

STYLE OF CAUSE: The Queen v. IPSCO Recycling Inc. et al.

PLACE OF HEARING:         Winnipeg, Manitoba

DATE OF HEARING:           June 18, 2004

SUPPLEMENTAL WRITTEN SUBMISSIONS FILED: July 13, 2004

July 23, 2004

July 30, 2004

SUPPLEMENTAL REASONS FOR ORDER

WITH RESPECT TO COSTS:                      Hon. Madam Justice Dawson

DATED:                                  August 6, 2004

APPEARANCES:

Duncan A. Fraser                      FOR THE APPLICANT

Joel I. Katz

James G. Edmond                     FOR THE RESPONDENTS

John D. Stefaniuk

Lyndee C. Bothe

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General                                   FOR THE APPLICANT

of Canada

Thompson Dorfman Sweatman              FOR THE RESPONDENTS

Winnipeg, Manitoba