Date: 20110907
Docket: T-2085-10
Citation: 2011 FC 1051
Ottawa, Ontario, September 7, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ROBERT SHOTCLOSE, HARVEY
BAPTISTE,
CORRINE WESLEY, MYRNA
POWDERFACE, CINDY DANIELS and WANDA RIDER
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Applicants
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and
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STONEY FIRST NATION, as
represented by its Chiefs and Councillors, and BEARSPAW FIRST NATION, as
represented by its Chiefs and Councillors, Chief David Bearspaw Jr.,
Trevor Wesley, Patrick
Twoyoungmen,
Roderick Lefthand and Gordon
Wildman
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Respondents
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REASONS FOR ORDER AND
ORDER
[1]
In
a judgment released on June 22, 2011, the applicants were wholly successful in
this application for judicial review. At the hearing, counsel requested that I
allow them the opportunity to file material and make additional submissions on
the question of costs following a decision on the merits. Accordingly, I set
out a timetable for the parties to serve and file written submissions no later
than July 22, 2011.
[2]
Prior
to that date, the respondents appealed the judgment and counsel requested an
extension of time to file their submissions on costs pending the outcome of stay
motions and, if successful on the motions, until the appeal was determined. That
request was granted. On July 28, 2011, the stay motions were dismissed by the
Order of Mr. Justice Stratas of the Federal Court of Appeal. By Direction
issued on August 4, 2011, a new timetable was fixed for the service and filing
of final written representations which have now been received.
[3]
In
the interim, an election was held in accordance with the terms of the June 22,
2011 judgment and a new Chief and Council were selected to lead the Bearspaw
First Nation. Both the Stoney First Nation and the Bearspaw First Nation, as
represented by their Chiefs and Councillors, have discontinued the appeal in
their names. As of the date of writing, it is unclear whether the appeal will
continue in the names of the former Bearspaw First Nation Chief and Councillors
who are the named individual respondents to this application. In the
circumstances, I see no reason to further delay my decision with respect to
costs in this matter.
[4]
In
the June 22, 2011 judgment I found that the applicants were deprived of their
voting rights and denied procedural fairness by the respondents in violation of
Bearspaw custom. In granting judgment, among other things, I set aside the
decision of the former Chief and Council to extend their terms of office,
removed the Chief and Council from office and ordered that an election be held
within 60 days.
[5]
The
applicants seek a lump sum award giving them full indemnity on a solicitor
client basis for legal fees in the amount of $258,850.00 and disbursements in
the amount of $22,040.55 for a total of $280,890.25 together with an amount for
their costs submissions. They have provided a Bill of Costs for their
disbursements together with invoices and statements of account which include
detailed counsel timesheets for their work on this application.
[6]
The
respondents submit that the applicants should not be entitled to elevated costs
as the conduct of the respondents or their counsel has not been reprehensible,
scandalous or outrageous such as to justify an exceptional award of solicitor
and client costs. They argue that the issues were needlessly complicated in
this proceeding by the fact that the applicants raised Charter grounds
when it was clear that such grounds had no foundation in law or the facts.
[7]
The
Court may award all or part of costs on a solicitor and client basis: Rule 400
(6), Federal Courts Rules, SOR/98/103. While this is generally done
where there has been reprehensible, scandalous and outrageous conduct during
litigation, the Court’s discretion is not so limited: King v. Canada (Attorney
General)
187 FTR 160 at paragraph 2.
[8]
The
Court may fix costs in a lump sum or leave costs to be assessed: Rules 400 (4)
(5); Dimplex North America Ltd. v. CFM Corp 2006 FC 1403 aff’d 2007 FCA
278. While the Court has full discretion over the amount of costs to be
awarded, the relevant factors in the non-exhaustive list delineated in Rule
400(3) must be considered in deciding, not only the quantum of costs, but also
their allocation and the determination of by whom such costs should be paid: Francosteel
Can. Inc. v. “African Cape” (The), [2003] 4 FC 284, 301 NR 313, 2003 FCA
119 at para 20.
[9]
I
agree with the applicants that the relevant factors here include the following:
a. That the
application was brought in the interests of all of the members of the community;
b. The issues
were complex and included conflicting evidence as to what constituted Bearspaw
First Nation custom;
c. That the
conduct of the respondent Bearspaw Chief and Councillors and their legal
counsel tended to unnecessarily lengthen the duration of the proceedings;
d. That steps
taken by the respondent Bearspaw Chief and Councillors in the proceeding were
improper, vexatious or unnecessary;
e. The amount of
work required to prepare for the hearing;
f.
That
a written offer to settle was disregarded; and
g. That the application
was wholly successful;
[10]
As
I stated at the hearing, this proceeding would not have been necessary had the
Chief and Council of the Bearspaw First Nation followed the example of the
Chiniki and Wesley First Nations and put the question of an extension of their
terms of office to the membership as part of the scheduled December 2010
election. All of the parties could have been spared the expense of costly
litigation had that sensible course of action been taken. The failure of the
respondents to do so was a blatant attempt to remain in power.
[11]
When
it proved necessary for the applicants to litigate to challenge the decisions
and actions of the Chief and Council, this matter could have been dealt with
more quickly and at less expense. The Court ordered an expedited hearing when
the matter was first brought forward as a motion for an interim injunction. It
was then placed under case management. Counsel for the Bearspaw Chief and
Council thereafter repeatedly requested case management conferences, complained
about the steps taken by the applicants in accordance with the Court's orders
and directions and sought to suspend the ordered timelines and postpone the
hearing. Unnecessary forensic evidence was filed. The respondents’ efforts to
file additional evidence of that nature was denied by the Court.
[12]
The
strategy pursued by the respondent Bearspaw Chief and Council when faced with a
challenge to their actions was to prolong and delay the proceedings in an
effort to entrench their position and make it more difficult to address the
issues in open court. The respondents dragged their feet and made it more
difficult for the applicants to obtain and present evidence such as Band
Council Resolutions in a timely manner. The respondents Chief and Council
controlled the documentary record and failed to produce relevant evidence and the
minutes of meetings which they had conducted on and off reserve. They ridiculed
the applicants for attempting to exercise their rights.
[13]
I
have already commented in my Reasons for Judgment on the inappropriate manner
in which counsel for the respondents conducted examinations and cross
examinations of the affiants. In his written submissions on costs, counsel
apologizes to the Court for his conduct during the examinations and attributes
it to pressures within his personal life and work environment. I accept that
apology but consider, nonetheless, that the manner in which the prehearing
proceedings were conducted is a relevant factor to be taken into account in
determining costs.
[14]
I
do not accept the assertion by counsel for the respondents that some of what
was said and done by him and others, including inappropriate comments to the
media about the applicants and sarcastic comments to and about opposing counsel,
falls within the scope of acceptable behaviour within "hard fought
litigation”.
[15]
On
February 16, 2011 the applicants offered in writing to settle the proceeding in
consideration for an election being held. In my view, that offer, of which I
had no knowledge prior to rendering judgment, was reasonable and would have
limited the costs incurred by the parties. The relief granted on judgment
clearly exceeded that described in the offer as acceptance of the offer would
have allowed the former Chief and Council to remain in office pending the
election. There was no response by the Chief and Council to that offer.
[16]
The
Charter issues raised by the applicants were not without foundation. The
evidence in support of those grounds was essentially the same as for the other
grounds presented by the applicants. In my reasons for judgment, I held that it
was not necessary to deal with those issues as the matter could be determined
on customary and administrative law principles. That is not to say that the Charter
grounds advanced by the applicants were without merit.
[17]
The
respondents submit that affidavit evidence and taxation in the normal course is
required because it is unclear to what extent the applicants’ costs have
already been paid by the Stoney Nation. This assertion appears to be based on
rumour or speculation as there is no evidence before me that any part of the
applicants’ costs have been paid by the Stoney Nation. I accept the applicants’
counsel's statement that this has not occurred. In light of the detailed
accounts that have been provided, I see no purpose would be achieved by
requiring the additional expense of taxation.
[18]
It
appears clear from the record before me that the respondents’ costs have been
paid, thus far, on a solicitor and client basis by either the Stoney First Nation
or the Bearspaw First Nation. As Justice Russel Zinn held in Peepeekisis
First Nation v. Poitras 2009 FC 1212 at paragraph 8, there appears to be no
principled reason why the applicants’ costs should not also be paid on that
same basis by the First Nations. See also Standinghorne v. Sweet Grass First
Nation, 2007 FC 1137 at paragraph 56.
[19]
I
understand that there may be some dispute between the First Nations which make
up the Stoney Nation as to whether Bearspaw or the Stoney Tribal Council is to
be held accountable for these costs. That is a matter for them to determine but
the applicants should not be denied relief for that reason. Accordingly, the
order will go that the Bearspaw First Nation is primarily responsible to pay
the costs but that all of the respondents, including the named individual
respondents, are jointly and severally liable for the costs award.
[20]
The
Wesley First Nation was added as a respondent in the application to present its
position regarding the terms of office for Chief and Councillors. It took no
part in the decisions and actions that led to this litigation and is not
subject to this Order other than as a member of the Stoney Tribal Council.
[21]
A
lump sum will be awarded of $285, 000.00 inclusive of an amount for the
submissions on costs.
ORDER
IT IS THE
ORDER OF THE COURT that:
1.
the
applicants shall have their costs on a solicitor-client basis for the
application and for matters relating to this Order for costs, fixed at a total
of $285, 000.00;
2.
the
applicants’ costs are ordered to be paid by the Bearspaw First Nation and the
Chief and Council of the Bearspaw First Nation are ordered to take all actions
and steps as are necessary to ensure that payment is made forthwith;
3.
in
the event that any or all of the costs ordered to be paid by the Bearspaw First
Nation are not so paid, the respondents are jointly and severally liable for
any amount that remains unpaid; and
4.
for
greater certainty, the Wesley First Nation is not liable for payment of the
applicants’ costs except to the extent that it forms part of the Stoney First
Nation and Stoney Tribal Council and the costs are authorized to be paid from
common tribal funds.
“Richard
G. Mosley”
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