Docket: T-1162-07
Citation:
2012 FC 234
BETWEEN:
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LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
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Applicant
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and
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HER MAJESTY THE QUEEN,
THE ATTORNEY GENERAL OF CANADA, WASYL ODYNSKY
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Respondents
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ASSESSMENT
OF COSTS - REASONS
BRUCE PRESTON - ASSESSMENT OFFICER
[1]
On
June 19, 2009, the Court dismissed the application with costs payable to Mr.
Odynsky by B’nai Brith (the Applicant) under Column III.
[2]
The
hearing of the assessment of costs was held on December 12, 2011 by way of
teleconference. Counsel for the Crown did not participate in the assessment.
[3]
During
the teleconference, counsel for the Applicant requested an adjournment as
counsel for Mr. Odynsky had submitted case law that morning. On the consent of
both parties, the hearing of the assessment was adjourned for one hour.
[4]
At
the hearing of the Assessment of Costs, counsel for Mr. Odynsky submitted that
the Applicant was seeking costs of $1.00.Counsel argued that the Court had awarded
costs under Column III of Tariff B of the Federal Courts Rules and that,
as a result, an assessment officer lacked the jurisdiction to allow costs of only
$1.00. In support, counsel for Mr. Odynsky referred to Madell v. the Queen,
2011 FCA 105, at paragraph 13, which held:
a.
The Appellant's
position, in urging me to effectively strike an award of costs, essentially
misconceived the role of an assessment officer: see para 3 of Marshall v.
Canada, [2006] F.C.J. No. 1282 (AO) [Marshall]. I do not have the
jurisdiction to vacate or vary a judgment as I am not the "Court" as
that term is used in the Federal Courts Rules: see Marshall above
and Sander Holdings Ltd v. Canada (Minister of Agriculture), [2009]
F.C.J. No. 720 (AO) [Sander Holdings]. With respect, the Federal Court
of Appeal having rendered its judgment for costs, I doubt that the relief
contemplated by the Appellant's materials before me is available via
interlocutory process.
[5]
Counsel
for Mr. Odynsky contended that the costs claimed in the Bill of Costs were
completely reasonable and that the Applicant has made no written submissions
concerning the individual Items claimed. Counsel referred to paragraph 14 of Madell
(supra) in support of the argument that the Federal Courts Rules do not contemplate
a litigant benefiting from having an assessment officer step away from a
neutral position to act as the litigant's advocate in challenging given items
in a bill of costs. Counsel also submitted that the only fees claimed were
those associated with the preparation of the Memorandum of Fact and Law and the
hearing of the Application.
[6]
Referring
to Herbert v. AGC, 2011 FC 365, counsel for the Applicant conceded that
he was unable to argue for an award of $1.00 as the Court had specified costs
under Column III. Counsel argued that, as an assessment officer, the range of
units under Column III was within my discretion and that the Items claimed
should be allowed at the lowest end of the range.
[7]
In
his Written Submissions, counsel for the Applicant argues that the factors
listed under Rule 400(3) of the Federal Court Rules should be taken into
account in assessing costs at the low end of Column III of Tariff B. Beginning
at paragraph 23, counsel submits:
23. In considering the result of the
proceeding under Federal Courts rule 400(3)(a), the applicant submits that the
Court should consider the results of the motions which the respondent Odynsky
made in which the applicant succeeded. The Court should also consider that on
the merits, the applicant succeeded on the issue of standing.
24. In considering the importance and
complexity of the issues under Federal Court rule 400(3)(c), the Court should
consider the need to prevent the Governor in Council from being immune from
judicial review. Costs should not become a deterrent that would contribute to
immunity.
25. In considering the apportionment of
liability under rule 400(3)(d), this Court should take into account that
success was divided. The respondent Odynsky succeeded on the issue of statutory
interpretation but the applicant succeeded on the issue of standing.
26. In considering the amount of work
under rule 400(3)(g), this Court should take into account that the effort the
applicant made in opposing the motions in which the respondent failed and the
position on standing on which the applicant succeeded was as substantial as the
work involved on the issue of statutory interpretation and then some.
27. In considering whether the public
interest in having the proceeding litigated justifies a particular award of costs
under rule 400(3)(h), this Court should take into account these remarks of Mr.
Justice Barnes at paragraph 12:
There is no question that B’nai Brith has
raised a serious issue of statutory construction in this proceeding and the
Attorney General did not strenuously argue otherwise. Justice Dawson also felt
this was a serious issue worthy of further consideration, and I can find no
basis for taking issue with her finding.
and
these remarks by the Federal Court of Appeal:
the point raised by the appellant
concerning the interpretation of subsection 10(1) has never been put directly
to this Court for decision.
28. In considering rule 400(3)(i), this
Court should take into account that the motion to strike and the motion for a
stay of the respondent Odynsky tended to unnecessarily lengthen the duration of
the proceeding. The motion for a stay was consequent upon the motion to strike.
29. In considering rule 400(3)(i) and
(k), this Court should take into account the fact that the respondent Odynsky
failed to admit that the standing of the applicant was at least fairly
arguable. The motion to strike and the motion for a stay were unnecessary. Any
issue raised on the unsuccessful motion to strike could have been left to the
main application.
30. In considering rule 400(3)(o), this
Court should take into account that
a) the applicant represents victims of
the Holocaust in general and relatives of victims of the place where the
respondent Odynsky was a concentration camp guard,
b) revocation proceedings were commenced
against the respondent Odynsky on the basis that the Minister of Citizenship
and Immigration had concluded that the respondent Odynsky was a person with
respect to whom there are substantiated allegations or evidence of direct
involvement or complicity in war crimes or crimes against humanity,
c) the Federal Court found that the
respondent Odynsky obtained his citizenship by false representation or fraud or
by knowingly concealing material circumstances.
It would offend justice to order a
representative of the relatives of the victims who died at the place where the
respondent Odynsky was a concentration camp guard to be ordered to pay
substantial sum of money by way of costs to a person such as the respondent
Odynsky.
[8]
At
the hearing of the assessment, counsel for the Applicant also submitted that
the public interest aspect of this proceeding related to the relatives of the
victims of the concentration camp. Counsel conceded that there was not a broad
public interest attached to this proceeding. Counsel argued that the Court
granted the Applicant standing and that this is evidence of a public interest
issue. Finally, counsel for the Applicant submitted that the issues contained
in the application were larger than the Holocaust; the issues went to cabinet jurisdiction.
[9]
In rebuttal, counsel for
Mr. Odynsky submitted that the issue being addressed on the assessment was
costs, not the standing of the Applicant. Concerning the issue of public
interest, counsel referred to Bow Valley
Naturalists Society v. Canada (Minister of Canadian Heritage), 2002 FCA 515, at
paragraph 10, which held:
I
think that the application of Rule 400(3) factors against the interest of
successful litigants would require carefully considered discretion. Rule 409,
being permissive, does not bind an assessment officer to exercise discretion
exactly as the Court has done and does not automatically require that a public
interest factor override all other factors so as to achieve minimum or maximum
allowances. In Early Recovered Resources Inc., supra, I tempered the weight
given to public interest because it was regional in nature. I doubt that, in
these circumstances, I can ignore the Appellants' role in creating scrutiny of
the process, but it is also uncontroverted that the Respondent had important
responsibilities, including respect for the Appellants' right to proceed. The
Respondent, having received the ordinary scale of party and party costs, is not
bound by a public interest factor to permit the Appellants to escape completely
the consequences of that costs award, ie. by minimum allowances when higher
allowances might otherwise be warranted….
Counsel further contended that any issue of
public interest was between the Applicant and the Attorney General of Canada. Counsel
argued that Mr. Odynsky had been dragged into the application as the dispute between
the Applicant and the Attorney General of Canada was his citizenship.
[10]
I
will commence with this last point. At paragraph 24 of League for Human Rights of B'Nai Brith Canada
v. Canada, 2008 FC 732 (League
of Human Rights), the Court held that a person is directly affected if the
decision at issue directly affects the party’s rights, imposes legal obligation
on it, or prejudicially affects it directly. Although I would not
characterize Mr. Odynsky’s standing as being dragged in, it is clear that he is
a person directly affected by the decision under judicial review.The question is whether this should have an
impact on the issue of costs. I am of the opinion that it does. Neither the
Crown nor Mr. Odynsky, both of whom possessed direct standing, sought a review
of the decision. This challenge was initiated by a third party who was found
not to have direct standing but who possessed public interest standing. When
the Applicant applied for a judicial review of the Governor in Council’s
decision, Mr. Odynsky was faced with a challenge to the status of his
citizenship by a third party. Faced with this challenge, Mr. Odynsky took steps
to protect his rights and this should have a bearing on the assessment of
costs.
[11]
A second preliminary
issue which must be addressed, is the impact of Mr. Odynsky’s motions for
orders striking the Application for Judicial Review and for a stay of the
judicial review proceeding. Several times in its submissions on costs, the
Applicant addresses Mr. Odynsky’s motions. Counsel for the Applicant argued
that consideration should be given to the success of the Applicant and the
effort the Applicant made in opposing these motions. Counsel contended that
these motions unnecessarily lengthened the duration of the proceeding. As the
Motion for a stay was in the Federal Court of Appeal and has no bearing on this
assessment, I will focus on Mr. Odynsky’s motion to strike.
[12]
Ordinarily, motions for
which costs have not been awarded would not have a significant impact on the
costs of a proceeding. However, counsel for the Applicant raises Rules
400(3)(i) as a factor to be considered in this assessment. In reaching a
decision as to whether the motion to strike, brought by Mr. Odynsky, unnecessarily
lengthened the proceeding, I looked to the Courts’ decisions regarding the
motions. As the decision of the Prothonotary dated February 4, 2008 was
reversed, I will focus on the decision on the appeal of that decision. At
paragraph 2 of League of
Human Rights (supra), the Honourable Madam Justice Dawson held:
On
this appeal from the prothonotary’s order, I exercise my discretion de novo.
I allow the appeal because I conclude that, in this case, the issue of public
interest standing should not be decided on a preliminary or interlocutory
basis. Instead, the issue should be left for the judge who hears the
application for judicial review.
Further, I looked at the decision of the
Federal Court of Appeal relating to Mr. Odynsky’s appeal from the order of the Honourable Madam Justice Dawson.
Commencing at paragraph 5 in League for Human Rights of B'Nai Brith Canada v.Odynsky, 2009 FCA 82,
the Court held:
5 In
the case of David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.),
[1995] 1 F.C. 588, this Court ruled that motions to strike an application
for judicial review should be resorted to only in the most exceptional
circumstances, i.e. when the application is bereft of any possibility of
success.
6 The
rationale for this ruling was that judicial review proceedings are designed to
proceed expeditiously and motions to strike have the potential to unduly and
unnecessarily delay their determination. In other words, as per the Bull
case, justice is better served by allowing the application judge to deal with
all of the issues raised by the judicial review application.
7 This
appeal illustrates the soundness and wisdom of the earlier ruling of this Court
in the above-mentioned case.
8 We are asked today, Thursday,
March 12, 2009, to decide an appeal on a dismissal of a motion to strike when
the very merit of the application for judicial review is due to be heard in
four days, a fact we were unaware of until we reached the stage of the
submissions by counsel for the League.(emphasis added)
[13]
In
both of these decisions, the Court held that any decision on the motion to
strike should be left to the judge hearing the judicial review application. It
is clear that the Federal Court of Appeal found that Mr. Odynsky’s motion to
strike unduly and unnecessarily delayed this proceeding. Consequentially, Mr.
Odynsky’s conduct of the motion to strike and the subsequent appeal is a factor
which should be considered in this assessment of costs.
[14]
Another
preliminary issue is public interest. When considering Rule 300(3)(h), I agree
with the Applicant that the nature of this proceeding is such that for a
portion of the population, public interest could be very high. However, as was
held in Bow Valley
Naturalists Society (supra), a public interest factor should not override all
other factors so as to achieve minimum or maximum allowances and the weight
given to public interest may be tempered due to a regional interest. Although
the case before me does not have a regional limitation, I agree with counsel
for the Applicant that the scope of public interest may not be overly broad and
may be limited to those whom the Applicant represents. On the other hand, I
agree with counsel for Mr. Odynsky that, in this particular proceeding, public
interest is primarily an issue which is between the Applicant and the
Respondents Her Majesty the Queen and the Attorney General of Canada. The
judicial review of the decision of the Governor in Council was launched by the
Applicant and the decision is defended by the Crown. As was found at paragraph
10, above, Mr. Odynsky was faced with a challenge to his citizenship and took
steps to protect his rights but the public interest aspect of the judicial
review emanated from the Applicants challenge, not Mr. Odynsky’s participation.
In summary, although there is an obvious public interest, that interest is
limited in nature and not related to steps Mr. Odynsky’s took to protect his
rights. Consequentially, I find that the impact of the public interest aspect
of this proceeding should not have any impact on the assessment of Mr.
Odynsky’s costs.
[15]
The
final preliminary issue relates to the impact the Holocaust should have on the
assessment of costs. When considering the Applicant’s submissions concerning
Rule 400(3)(o) (any other matter), it is noted that assessment officers
occasionally conduct assessments involving parties facing challenging
circumstances. However, notwithstanding the gravity of these situations,
assessments must be conducted pursuant to the Rules and Tariff of the Federal
Courts Rules. Therefore, I find the fact that the Applicant represents
families of victims of the Holocaust is not a factor which I can consider in
this assessment of costs.
[16]
In
the light of these competing factors, I will now address the individual Items
and disbursements claimed.
[17]
As
mentioned above, the only argument concerning assessable services that was put
forward by the Applicant was that the Items claimed should be allowed at the
low end of Column III. In Starlight v Canada, 2001 FCT
999, it was held:
7
The
structure of the Tariff embodies partial indemnity by a listing of discrete
services of counsel in the course of litigation, not necessarily exhaustive.
The Rules are designed to crystallize the pertinent issues and eliminate
extraneous issues. For example, the pleading and discovery stages may involve a
complex framing and synthesizing of issues leaving relatively straightforward
issues for trial. Therefore, each item is assessable in its own
circumstances and it is not necessary to use the same point throughout in the
range for items as they occur in the litigation. If items are a function of
a number of hours, the same unit value need not be allowed for each hour
particularly if the characteristics of the hearing vary throughout its duration.
In this bill of costs, the lower end of the range for item 5 and the upper end
of the range for item 6 are possible results. Some items with limited ranges,
such as item 14, required general distinctions between an upper and lower
assignment in the range for the service rendered. (emphasis added)
In keeping with the findings in
Starlight, I will assess each Item claimed based on the merits of the
individual items.
[18]
Counsel
for Mr. Odynsky has claimed Item 2 (Preparation and filing of all defences,
replies, counterclaims or respondents’ records and materials) at 5 units. I
consider this to be the mid range of Column III. Having reviewed the record of
this proceeding and determined that counsel for Mr. Odynsky filed an
Application Record; I find the amount claimed under Item 2 to be reasonable.
Therefore, in keeping with my findings above, I allow Item 2 as claimed.
[19]
Item
13(a) and (b) (preparation for trial or hearing) have been claimed at the high
end of Column III. Given that Mr. Odynsky’s appeal from the decision of the
Honourable Madam Justice Dawson was heard just four days prior to the hearing
of the judicial review, and given the findings of the Federal Court of Appeal
as quoted at paragraph 12, above, I find that his claims for Items 13(a) and
13(b) are excessive. I allow Item 13 (a) at 2 units and Item 13(b) at 2 units
per day for the second day of the hearing.
[20]
Concerning
Item 14 (a) (first counsel per hour in Court), Mr. Odynsky has claimed 3 units
per hour for 10 hours. Having reviewed the Abstract of Hearing, it has been
confirmed that the hearing of the judicial review lasted 10 hours over two
days. Also, further to my findings at paragraph 10 above, I find that, because
Mr. Odynsky was faced with a challenge to the status of his citizenship by a
third party, he was paced in a unique position which warrants an allowance for
counsels time in Court at a higher level. As Item 14 has a range of 2 – 3 units,
I will allow it at 3 units for 10 hours as claimed.
[21]
Counsel
for Mr. Odynsky has claimed 7 units under Item 15 (preparation of written
argument, where requested or permitted by the Court). Having reviewed the
record, it appears that the claim under Item 15 relates to the service and
filing of the Memorandum of Fact and Law. If this is the situation, the claim
may not be allowed as claims for Memoranda of Fact and Law are allowed under
Item 2 as part of the Respondent’s Record. Further, although I was able to
locate two directions of the Prothonotary requesting written argument, both of
these directions relate to Mr. Odynsky’s motion to strike for which no costs
have been awarded by the Court. Although there is a third direction dated
August 8, 2007, requesting a response to the Applicant’s letter dated July 31,
2007, I do not consider this a request for written argument as contemplated by
Item 15 of Tariff B. There are no other directions requesting written argument.
I have decided on many occasions that, absent a direction or request from the
Court, Item 15 may not be allowed. (see: Moglica v. Canada (Attorney
General), 2011 FC 466, Laboucan v. Loonskin, 2009 FC 194, Bartkus
v. Canada Post Corp., 2009 FC 404 and Moodie v. Canada (Minister of
National Defence), 2009 FC 608) Therefore, as there are no requests from
the Court for written argument for which Mr. Odynsky is entitled to costs, the
claim under Item 15 is not allowed.
[22]
As
the Applicant has not provided any submissions concerning the disbursements
claimed, and having reviewed the claims for photocopying and delivery and
service of document, I find the amounts claimed to be reasonable and necessary
given the circumstances of this proceeding. Therefore, as Mr. Odynsky has
provided justification for these disbursements, they are allowed as claimed for
a total of $612.29.
[23]
For
the above reasons, the Bill of Costs of Mr. Odynsky is assessed and allowed at
$6,341.39. A Certificate of Assessment will be issued in that amount.
“Bruce Preston”
Toronto, Ontario
February 21, 2012
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