Date: 20071219
Docket: T-1168-96
Citation: 2007
FC 1338
Ottawa, Ontario,
this 19th day of December, 2007
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ALLISON G. ABBOTT, MARGARET
ABBOTT, and
MARGARET ELIZABETH McINTOSH
Plaintiffs
and
HER
MAJESTY THE QUEEN
Defendant
ORDER FOR COSTS AND REASONS
OUTSTANDING ISSUES
[1]
The Crown
has conceded that if it is awarded costs the initial assessment of $60,923.04
should be discounted by the amount of the Plaintiffs’ assessed costs for the
Crown’s motion, and by an additional amount of $4,100.00 for costs related to
the CP intervention.
[2]
The
questions remaining for the Court are:
1.
Should the
parties be left to bear their own costs; and
2.
In the
event that costs are awarded to the Crown, should the assessment be reduced to
take into account:
(a)
Costs
claimed for examinations for discovery; and
(b)
Costs of
second counsel.
BASIC DISPOSITION
[3]
The
Plaintiffs recognize that a successful party is ordinarily awarded costs but
say that the facts of this case make it appropriate that the parties should be
left to bear their own costs.
[4]
The
Plaintiffs advance the following arguments for this position:
1. Notwithstanding the result in
favour of the Crown, the Court should take into account the relative
“blameworthiness” of the parties when exercising its general discretion over
costs; and
2. The Court should recognize
that the Plaintiffs were advancing a novel proposition of law and in a
situation where there was some public interest in having the matter litigated.
[5]
I have
carefully reviewed the principals and authorities put forward by the Plaintiffs
in their written materials and their oral arguments but I do not think there is
sufficient justification on the facts of the present case to depart from the
usual practice of awarding costs to follow the event.
[6]
In my
reasons for the action, I really did not make any findings that would allow me
at this stage to ascribe a weight of blame to the Crown, or to say that the
Plaintiffs would have been entitled to succeed but for the delay in bringing
the action.
[7]
All I said
was (para. 26) that “I am in agreement with the Plaintiffs that the assignment
documentation is sufficiently comprehensive to create a possible chain of
interest between original holders of perpetual renewal leases and the Plaintiffs
sufficient to give them standing to bring this claim…”
[8]
In other
words, this was merely a finding that the Plaintiffs had standing to make the
claim and were not excluded on the basis that they had no possible interest to
assert.
[9]
The Court
certainly recognized that the Plaintiffs were alleging wrongful and unlawful
actions by the Crown, but the Court made no findings in this regard because the
assertions, even if true, were not new and the law of limitations made it
unnecessary to examine the merits: “Consequently, there is little to be gained,
in my view, from a review of the Crown’s conduct in requiring the surrenders
and the new leases.” (para. 39). The Court makes it clear at paragraph 74 of
its reasons that it has not examined the merits of the Plaintiffs’ assertions.
Consequently, for purposes of considering costs, the Court cannot engage in an
examination of relative blameworthiness or say that, but for the passage of
time, it would have found the Crown culpable and the Plaintiffs’ claims valid. As
the Plaintiffs say in their own brief, their arguments on this point are
“conjecture” and I don’t think I can use that conjecture as a basis for
departing from the usual practice of having costs follow the event.
[10]
Similarly,
I do not find the Plaintiffs novel point of law arguments provide sufficient
justification to depart from the usual practice.
[11]
The basis
of my decision was that, under the Manitoba
Limitations of Action Act, the Plaintiffs were simply out of time. That
involved applying the relevant limitations provision to the facts before me. It
is true that the Plaintiffs raised extremely able arguments as to why the
statute should not apply in this case but, in the end, I simply explained why I
could not accept those arguments and why I applied the provisions of the
statute. I do not believe that novel points of law were raised and I do not
believe there was really a national or extra-provincial dimension to the case
that was before me. Those additional dimensions may have been raised in other
contexts but, as my reasons make clear, I simply followed advice from both
sides that “the relevant limitations statute in this case is the Manitoba Limitations of Action Act
…” and I applied it accordingly.
[12]
The fact
of there being no case to cite that was directly on point does not, in my view,
raise a novel point of law.
[13]
There is a
clear policy behind limitations statutes: the state believes that claims should
be brought in a reasonably timely manner and that there should be an end to the
threat of litigation after a certain time. The court found in the present case
that previous owners were aware of the limitations issues and, after receiving
legal advice, chose to pursue a political solution and not a legal one. Applying
the relevant limitation period as a justification for barring a claim will not,
in my view, discourage litigation; it will merely send a message that claims
must be commenced within a certain time. Potential litigants have to make up
their minds and they did so in this case after obtaining legal advice.
[14]
All in
all, and after considering the Plaintiffs’ arguments and authorities, I think
there is insufficient reason on these facts to depart from the usual practice
that costs should follow the event.
QUANTUM
[15]
I have
reviewed the Crown’s draft bill of costs and, as an exercise of my own
discretion under the Federal Court Rules, I think the amounts claimed
are generally appropriate – subject to the reductions already agreed to by the
Crown – and that I only need to examine the issues raised by the Plaintiffs
with regard to examinations for discovery and the costs of second counsel.
[16]
While I
can accept the Crown’s arguments that discovery was necessary to establish
factual commonality and to make the trial more efficient, I do have a concern
over the preparation time. The maximum number of units for preparation time is
claimed in each case and, in the absence of an explanation, common sense
suggests to me that, where repetitive questions were asked in order to arrive
at an agreed set of facts, preparation time should not have been the same in
each instance and the preparation time should have diminished as the process
unfolded. Hence, I think the total units for preparation for discovery should
be 15 rather than 30.
[17]
Using a
unit value of $100.00, this results in a reduction of $1,500.00 for preparation
time.
[18]
As regards
the costs of second counsel, the Crown has claimed 93 units at 50% for a total
of $5,115.00. I do not think there is much of an analogy with the Sidorsky
case as regards the cost of the legal brief. However, the principal is well
established that there is a difference between what is reasonable and what a
party may choose to do because it has the resources. In Sidorsky the
Court declined to allow costs for third and fourth counsel, but the Court did
think that a second counsel fee was reasonable. So I think I have to ask myself
in this case whether the second counsel fee is reasonable.
[19]
Sidorsky enunciates a principal that
costs are not based on the assumption that litigants have identical resources
available to them. Something may be a good idea from the point of view of
strategy but this does not mean that the full expenditure should be allowed
when costs are considered. It would seem to me that the obverse is also true:
i.e. just because one litigant cannot afford, or does not choose, to do
something does not mean it was unreasonable for the other side to do it and
claim costs. The complexity of a case may justify additional counsel even
though one side decides to only use single counsel, as is the case with the
Plaintiffs on these facts.
[20]
Looking at
the complexity of the issues and the division of labour that occurred in the
present case I do not think I can really say that the use of second counsel was
unreasonable given that the Crown has discounted the value by 50%.
[21]
The
parties have agreed and have advised the Court as follows:
(a)
The amount
of the Plaintiffs’ bill of costs, as submitted, should be deducted from the
amount of the Crown’s claim for costs. Such set-off will be effected by
deducting the cost portion of the Plaintiffs’ bill of costs against the Crown’s
costs as claimed, and the disbursements portion of the Plaintiffs’ bill of
costs shall be deducted from the disbursement portion of the Crown’s claim;
(b)
Any
further adjustments to the Crown’s “net” costs resulting from the application
of the reduction described in (a) above shall result in an adjustment to the
net disbursements of the Crown by an amount equal to 20% of the costs
adjustment. This means, for example, that if the Crown’s cost claim is reduced
by $1,000.00 then this will require a $200.00 reduction in the Crown’s
disbursement claim.
[22]
Putting
all of this together, the Court’s calculation of the costs due to the Crown is
as follows:
(a)
Crown’s
Original Claim
Costs $50,585.00
Disbursements $10,338.04
Total $60,923.04
(b)
Plaintiff’s
Set-Off Bill of Costs
Costs $11,663.00
Disbursements $
1,313.11
Total $12,976.11
(c) Further Cost Reductions
Crown costs of CP
Intervention $ 4,100.00
Reduction for
Preparation of Time $ 1,500.00
Total $
5,600.00
(d) Further Disbursement Reduction
($5,600.00 x 20%) $1,120.00
[23]
Applying
the rules agreed to by the parties, this means a total reduction of $17,263.00
against the Crown’s initial cost assessment and a total reduction of $2,433.11
against the Crown’s initial disbursement assessment, for a final total of $41,226.93
($33,322.00 + $7,904.93).
ORDER
THIS COURT ORDERS that
1.
The
Defendant shall have its costs and disbursements in this matter fixed at $41,226.93.
“James Russell”
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