Date: 20090528
Docket: T-1514-06
Citation: 2009
FC 558
Ottawa, Ontario, May 28, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
HARRY WAWATIE, TOBY DECOURSAY,
JEANNINE MATCHEWAN AND LOUISA PAPATIE,
IN THEIR CAPACITY AS MEMBERS OF
THE ELDERS COUNCIL OF MITCHIKANIBIKOK
INIK
(also known as ALGONQUINS OF BARRIERE LAKE)
Applicants
and
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Respondent
and
THE ELDERS OF MITCHIKANIBIKOK INIK
(ALGONQUINS OF BARRIERE LAKE)
LED BY CASEY RATT
Interveners
REASONS FOR ORDER AND
ORDER ON COSTS
[1]
The
applicants’ application for judicial review of the decision of the Minister to
impose Third Party Management upon the Algonquins of Barriere Lake was
dismissed. My reasons are reported at 2009 FC 374. It had been agreed during
the hearing that the parties would prefer to discuss costs after the decision
was rendered. In particular, the applicants were seeking costs against the
Minister on a solicitor-client basis. The interveners were also seeking costs which
are not presently before me.
[2]
The
Minister now moves for an order against the applicants jointly and severally in
the lump sum amount of $35, 187.39. The motion was accompanied by a draft bill
of costs calculated on Column III of Tariff B, which is the default provision.
It is clear that the draft did not capture all relevant disbursements,
particularly airfares. I am confident that if a bill of costs were taxed, it
would be taxed for at least $35,000, and probably more. However, since any
taxation may well be symbolic, the Minister was persuaded to settle for a lump
sum of $30,000. I so order.
[3]
This
motion raises two issues: entitlement to costs and the amount thereof. The
applicants did not have much to say with respect to quantum, although some
concern was expressed that the disbursements were proportionately high when
compared to the fees. However, the reduction to $30,000 more than addresses
that concern. The objections to the taxation were more on principle. The
applicants submit that they should not be required to pay any costs because:
(a)
the
Minister waived costs;
(b)
the
application was of public interest and, although unsuccessful in first
instance, engaged the Honour of the Crown in new areas of the law;
(c)
the
applicants are impecunious and an award of costs would be unduly punitive;
(d)
if,
nevertheless, an order is to be made it should be made against the Band itself
and not against the applicants, as they were acting in a representative
capacity.
ENTITLEMENT TO COSTS
[4]
Rules 400
and following of the Federal Courts Rules deal with the awarding of
costs between parties.
[5]
The
general principle is that the Court has full judicial discretionary power over
the amount and allocation of costs. Costs may be awarded to or against the
Crown. As noted by Mr. Justice Mahoney in Canada v. James
Lorimer & Co. [1984] 1 F.C. 1065 (F.C.A.), 180 N.R. 351: “… There was a
time when the “rule of dignity” dictated that the Crown neither asked nor paid
costs in the ordinary course of events. That time is long past… .”
[6]
All things
being equal, costs are usually awarded to the successful party. The Minister is
not seeking enhanced costs based on any of the factors set out in Rule 400.
[7]
It has
been held as a matter of policy that the Court should, when instances allow of
it, favour lump sum orders, primarily guided by the standards established in
Tariff B. As stated by Mr. Justice Hugessen in Barzelex Inc. v. EBN
Al Waleed (The), [1999] F.C.J. 2002 (QL) at paragraph 11:
…In my view, as a matter of policy the
Court should favour lump sum orders. It saves time and trouble for the parties
and it is a more efficient method for them to know what their liability is for
costs. I would be perfectly prepared therefore if the defendants who are
largely successful on this motion wished to draw an order calculating the
amounts of the costs to which each party is entitled to make a further order in
fact awarding a lump sum. …
In this case, the Minister was completely successful and has
already made appropriate calculations.
WAIVER OF COSTS
[8]
There is
nothing to prevent a successful party from waiving costs or, if awarded,
declining to collect them. The applicants submit that the Minister waived costs
because no mention of costs was made in his respondent’s record. That is quite
true and Rule 70(1) of the Federal Courts Rules provides that a
Memorandum of Fact and Law shall contain a concise statement of the Order
sought, “including any order concerning costs.”
[9]
Although
the jurisprudence is sparse, the Court of Appeal has held that one is not disentitled
to costs unless one neither asked for them in the pleadings nor orally at the
hearing (Pelletier v. Canada (Attorney General) 2006 FCA
418, 380 N.R. 158 and Balogun v. Canada, 2005 FCA 150, [2005] F.C.J.
No. 728 (QL)). In the circumstances, the Minister definitely asked for costs at
the deferred hearing. I hold entitlement to costs was not waived.
PUBLIC INTEREST
[10]
This is
not, in my view, a case where public interest dictates a particular result with
respect to costs. The Honour of the Crown was not at stake. The case was
limited to breaches of a funding arrangement and the remedies available to the
Minister. The case had nothing to do with practices, customs and traditions
which constitute Aboriginal rights that existed prior to the arrival of the
Europeans, as I pointed out in paragraph 40 of my reasons.
[11]
Nor are
there other circumstances which move me to order that each party should pay its
own costs. The applicants referred me to Roseau River Anishinabe First Nation v. Roseau River Anishinabe
First Nation (Council), 2003 FCT 168, [2003] 2 C.N.L.R. 345. That case dealt
with an application by the Chief and four Councillors of the First Nation Council
for judicial review of a decision of the Custom Council amending the First
Nation’s Election Act. Mr. Justice Kelen concluded at paragraph 68: “…The
Custom Council could have sought legal advice before seeking to remove the
applicants from office in the middle of their term, which may have removed the
basis for the applicants’ legal action. For this reason, there shall be no
order as to costs.” This, however, is an application by four members of the
Elders Council, not even by the Band Council, to challenge a decision of the
Minister. The circumstances are quite different.
IMPECUNIOSITY
[12]
There is
anecdotal evidence that the applicants may be impecunious and that the Minister
may be unable, or perhaps even unwilling, to collect. The issue however is
indebtedness, not recovery of that indebtedness (Solosky v. Canada,
[1977] 1 F.C. 663).
[13]
The
applicants cite the case of Young v. Young [1993] 4 S.C.R.
3 as authority for the well-known proposition that costs are partially
compensatory and are not punitive, except in special circumstances. However,
that was a case which dealt with solicitor-client costs. The Minister is not
seeking solicitor-client costs, or even enhanced costs on the basis that the
case became unduly complex because the applicants resurrected issues going back
fifteen years before the decision to impose third party management was made.
LIABILITY OF THE BAND
[14]
Finally,
the applicants say that if costs are to be taxed they should be taxed against
the Band itself. I do not subscribe to this view. I held that the four
applicants, be they as the Elders Council, or as individual Band members, had
no standing. There was nothing in the record to indicate that the Band counsel
itself was unable to institute proceedings. In fact, just after the application
was launched the Council passed a resolution in support. This suggested to me
that the applicants were being put up as straw men, immune to costs, or so as to
avoid the application being discontinued should the then-Council be replaced by
a new one which did not wish to pursue the litigation. The Interveners, in fact,
purport to be such a replacement Council.
[15]
To suggest
that the Band should pay the costs is to meddle in other proceedings currently
before the Court, (the decision of the Minister to deal with the Council led by
Casey Ratt (T-462-08) and the application by Casey Ratt, et al. against the
status of the competing Council led by Benjamin Nottaway (T-654-09).
[16]
If the
applicants have support within the community for the proceedings they took,
then perhaps they could ask those supporting Band members to contribute to
their liability.
[17]
If anyone
had the right to assert that the Band should be liable for costs, it is the
Minister and he has chosen not to do so (Gulf Canada Resources Ltd. v.
Merlac Marine Inc. (1994), 18 O.R. (3d) 239, [1994] O.J. No. 812 (QL)).
ORDER
THIS COURT ORDERS that:
The Minister is awarded costs against
the applicants, or their Estates, jointly and severally in the lump sum of
$30,000.
“Sean
Harrington”
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