Date: 20100914
Docket: T-2000-09
Citation: 2010 FC 910
BETWEEN:
CHIEF JEAN MAURICE MATCHEWAN,
and COUNCILLORS BENJAMIN NOTTAWAY, EUGENE NOTTAWAY, JOEY DECOURSAY and
DAVID WAWATIE and EDDY NOTTAWAY, MICHEL
THUSKY,
JEANNINE MATCHEWAN and LOUISA PAPATIE,
in their capacity as MEMBERS OF THE
ELDERS
COUNCIL OF MITCHIKANIBIKOK INIK
Applicants
and
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
and LEMIEUX & NOLET INC. (Third
Party Managers) and CASEY RATT,
RICKY DECOURSAY, ROGER JEROME, WAYNE
PAPATIE
and DONAT THUSKY (claiming to be
“council of the band”
selected pursuant to a process conducted
on January 30, 2008)
Respondents
ASSESSMENT OF
COSTS – REASONS
Johanne
Parent
Assessment Officer
[1]
The
Application for Judicial Review was discontinued on March 5, 2010. On May 10,
2010, the respondent Minister of Indian Affairs and Northern Development (the
respondent) filed its Bill of Costs. A timetable for written disposition of the
assessment of the respondent’s Bill of Costs was issued on May 20, 2010 and
sent to both parties.
[2]
Pursuant
to Rules 402, 403 and 407 of the Federal Courts Rules, the respondent submits
that, in the event of a discontinuance and in the absence of any directions by
the Court, costs should be assessed in accordance with Column III of Tariff B.
[3]
The
applicants, in their representations, summarize the issues raised by this
litigation and other related files, submitting that this is not an appropriate
case for costs. They also submit that, further to the award of costs,
consideration should be given to the fact that they had acted prudently in
withdrawing their application at an early stage. Furthermore, the applicants
needed the Court as a neutral party to resolve matters and they assert it in
their representations at paragraph 5: “the importance of resolving this
democracy and public interest should be a consideration in this Court’s costs
award”.
[4]
I
find, in the absence of a Court Order or agreement between parties on the costs
of this discontinuance, the respondent shall have its costs assessed.
[5]
On
the issue of public interest, the respondent indicates at paragraphs 6 and 7 of
their representations that:
6.
On the
contrary, this discontinued Application concerns the specific interests of a
particular group purporting to be the Council of the Band.
7.
In their
Notice of Application, the Applicants indicate that the “decision” at issue
pertains to the Minister’s relations with their particular group, known as the
“Matchewan Customary Council”:
“This is an Application for Judicial
Review of the decision of the Minister of Indian Affairs and Northern
Development (the “Minister”), communicated to the Applicants by letter dated
October 30, 2009, to NOT register the results of the leadership selection of
June 24, 2009, and to NOT conduct its relations with Chief Jean Maurice
Matchewan and Councillors Benjamin Nottaway, Eugene Nottaway, Joey Decoursay
and David Wawatie, the “Matchewan Customary Council”, for the
Mitchikanibikok Inik, also known as the Algonquins of Barriere Lake (the “First
Nation” or “ABL”), who were selected on June 24, 2009.” (Respondent’s
emphasis).
[6]
I note that Rule 409 states that “in assessing
costs, an assessment officer may consider the factors referred to in subsection
400(3). Rule 400(3)(h) reads: “In exercising its discretion under subsection
(1), the Court may consider: whether the public interest in having the
proceeding litigated justifies a particular award of costs.” It is important to
note that neither party provided significant submissions on the issue of public
interest making it difficult for me to fully consider the matter. From my
review of the jurisprudence on the subject, the decision of Harris v. Canada, 2001
FCT 1408 (F.C.) provides a summary of the criteria to determine whether a
matter is of public interest. At paragraph 222, it was held:
In its Report
on the Law of Standing (Toronto: Minister of the Attorney General, 1989) the
Ontario Law Reform Commission proposed criteria to determine the circumstances
where costs should not be awarded against a person who commences public interest litigation. Those
criteria were:
(a) The proceeding involves
issues the importance of which extends beyond the immediate interests of the
parties involved.
(b) The person has no personal, proprietary or
pecuniary interest in the outcome of the proceeding, or, if he or she has an
interest, it clearly does not justify the proceeding economically.
(c) The issues have not been previously
determined by a court in a proceeding against the same defendant.
(d) The defendant has a clearly superior
capacity to bear the costs of the proceeding.
(e) The plaintiff has not engaged in vexatious,
frivolous or abusive conduct.
[7]
After
taking full cognizance of the file and the arguments of both parties on the
subject, I cannot come to the conclusion that public interest was at issue. I consider
that this matter did not involve issues
the importance of which extends beyond the immediate interests of the parties
involved (first criterion). Regarding the superior capacity of the respondent to
bear costs in this matter, the Courts have held in numerous occasions that the
financial capacity of the Crown should not prejudice its entitlement to costs (Canada v. James Lorimer & Co., [1984]
1 F.C. 1065 at 1076-1077 (C.A.), cited in Canada (A.G.) v.
Georgia College of Applied Arts and Technology, [2003] 4 F.C. 525 at para. 29 (F.C.A.).
[8]
Continuing
the exercise under Rule 400(3), other factors can also be considered while
assessing costs namely at subparagraph (i) the conduct of the party that tended
to shorten or unnecessarily lengthen the proceedings. For that factor, the
applicants in their submissions argue that “they acted prudently in withdrawing
their Application at this early stage” and ask that it be taken into
consideration in the costs assessment.
[9]
In
consideration for the work required in the preparation and filing of a Notice
of Appearance, it has been held several times that one unit is reasonable: McRae v. Canada 2006 FC 801(A.O.) and Toronto Sun Wah Trading Inc. v.
Canada 2009
FCA 293(A.O.). In keeping
with these decisions, the three units claimed under Item 27 for the filing of
such Notice are reduced to one unit.
[10]
Five units are claimed under Item 7 (Discovery of documents,
including listing, affidavit or inspection) for the filing of the Affidavit of
Camil Simard, on February 17, 2010. From the Court file, I note that this
affidavit was filed in response to the Application. I suspect that the
respondent meant to claim its preparation under Item 2 (Preparation and filing
of all defences, replies, counterclaims or respondent’s records and materials)
and I will, therefore, correct the Bill of Costs to reflect the correct Item
number. In response to the applicants’ argument of timeliness, I have no
doubt that the discontinuance was filed in a very timely manner. Nevertheless,
the respondent, in order to conform with the Federal Courts Rules filed
the affidavit of Camil Simard in response to the applicants’ affidavits filed
in support of the Application within the thirty days time limit as required by Rule
307. Therefore, Item 2 is allowed at four units for the
affidavit of Camil Simard.
[11]
Three units are claimed under Item 27 (such other services as may
be allowed by the assessment officer or ordered by the Court) for the work
performed in responding to the applicants’ request for materials under Rule 317
of the Federal Courts Rules. Said document was filed with the Court on
January 8, 2010. Rule 317 provides a means for parties to request material in
the possession of the tribunal. The respondent states in its letter of January
8, 2009:
“… Rule 317 can only be invoked where a decision or order of a
tribunal is under review. At this preliminary stage in the proceedings, our
position is that the Minister did not make a decision as described in your
Notice of Application.
That being said and without prejudice to our position that no
decision was made as described in your Notice of Application, a list of
documents in our clients’ possession pertaining to the purported June 24, 2009
selection process is provided in annex to the present letter.”
Tariff B of the Federal Courts
Rules does not have a counsel fee Item specifically for Rule 317 tribunal
material. In this matter, in the interest of time, respondent’s counsel did
prepare the materials comparable to Rule 317, as requested by the applicants. In
consideration for the work performed, I allow two units under Item 27 for the
preparation of the materials.
[12]
Fees
are claimed under Item 25 for services after judgment. Item 25 contemplates the
review and the reporting of the final Court decision to the client. There was
no final decision made in this Court file and I cannot find in the respondent’s
submissions any justifiable services rendered in that regard. I therefore disallow
the one unit claimed.
[13]
The
maximum number of units is claimed under Item 26 for the Assessment of Costs. Given
my experience in dealing with costs and considering the affidavit and
submissions filed by the respondent, I allow four units.
[14]
The
fees for assessable services are allowed in the amount of $ 1,430 plus GST.
The
respondent claimed the Provincial Sales Tax (PST) on all assessable services.
The events of this litigation happened before July 1, 2010 when “legal
services” were not considered a taxable service under subsection 1(1) of the Retail
Sales Tax Act, R.S.O. 1990, c. R.31. Since costs are an indemnity for
actual expenditures, I find that I do not have the authority to allow the PST
as claimed.
[15]
I examined the remaining disbursements claimed along with the
supporting material and find all claimed charges were necessary for the
conduct of this matter. The amounts are not contested, are reasonable and they
are, therefore, allowed.
[16]
The
bill of costs is allowed for a total amount of $1,910.50.
“Johanne Parent”
Toronto, Ontario
September 14, 2010
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