Waterhen Lake First Nation v. Ernest, 2004 FC 1068

Date: 20040805

Docket: T-294-03

Citation: 2004 FC 1068

BETWEEN:

                                              WATERHEN LAKE FIRST NATION

                                                                                                                                            Applicant

                                                                         - and -

                                       MICHELLE ERNEST, LEONARD VINCENT

                                    DONALD MARTELL, JOANNE MARTELL and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                      Respondents

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                A motion by the Applicant for stay of execution of the decision of an arbitrator made further to the Canada Labour Code, pending judicial review of said decision, was dismissed with costs. I issued a timetable for written disposition of the bill of costs of the Respondents, Michelle Ernest, Leonard Vincent, Donald Martell and Joanne Martell (hereafter "the Respondents").

[2]                The Applicant did not file any materials in response to the Respondents' materials. My view, often expressed in comparable circumstances, is that the Federal Court Rules, 1998 do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. Item 13(a) would address preparation for the judicial review, but not preparation for an interlocutory hearing. The item 5 claim in the Respondents' bill of costs already addresses this latter preparation. The Applicant appealed the decision dismissing the stay of execution application. The order dated September 19, 2003, in the Federal Court of Appeal file A-39-03, dismissed said appeal, but was silent as to costs. Therefore, there does not appear to be any authority for the claim here under item 21 (a). In the circumstances, I disallow items 13(a) and 21(a). Otherwise, the amount claimed in the bill of costs is generally arguable within the limits of the award of costs as reasonable in the circumstances of this litigation. The bill of costs of the Respondents, presented at $3,345.10, is assessed and allowed at $ 2,350.70.

(Sgd.) "Charles E. Stinson"

             Assessment Officer

Vancouver, B.C.

August 5, 2004

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-294-03

STYLE OF CAUSE:                          WATERHEN LAKE FIRST NATION

- and -

MICHELLE ERNEST et al.

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE

OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                     CHARLES E. STINSON

DATED:                                                                                   August 5, 2004

SOLICITORS OF RECORD:

Semaganis Worme & Missens                                                   for Applicant

Saskatoon, SK.

Morris Rosenberg

Deputy Attorney General of Canada     for Respondent Attorney General of Canada

Wallace Meschishnick Clackson Zawada

Saskatoon, SK                                                                          for Respondents Michelle Ernest et al.