Date: 20070327
Docket: T-2007-02
Citation: 2007 FC 329
BETWEEN:
MELVIN WANDERINGSPIRIT,
DELPHINE BEAULIEU,
TONI HERON, RAYMOND BEAVER AND
SONNY MCDONALD in their capacity as
COUNCILLORS OF THE SALT RIVER FIRST NATION 195,
elected August 30, 2002
Applicants
and
VICTOR MARIE uncontested Chief
and
NORMAN STARR uncontested duly elected BAND
COUNCIL MEMBER,
NORA BEAVER, DAVID GOWANS, CONNIE
BENWELL,
MICHEL BJORNSON, HARVEY LEPINE, AND DON
TOURANGEAU,
purportedly elected BAND COUNCILLORS at a
meeting held
November 3, 2002, AND JEANNIE
MARIE-JEWELL,
acting as Interim Band Manager
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
Further
to the Applicants' notice of motion for a finding of contempt against eight of
the nine Respondents, the Court found two of the Respondents in contempt, but
dismissed the motion for contempt relative to the other six subject
Respondents, including David Gowans (the Respondent Gowans), with mid-Column IV
costs to the Respondent Gowans (the June 29, 2006 findings). I issued a
timetable for written disposition of the assessment of the bill of costs of the
Respondent Gowans.
I. The Positions of the Respondent
Gowans and of the Applicants
[2]
The
Respondent Gowans conceded the Applicants' objection that counsel fee item
14(a) (appearance) should be reduced from the maximum 4 units ($120.00 per
unit) per hour claimed to the mid-range value of 3 units per hour permitted by
the Court's decision. As for the Applicants' assertion that the Court was in
session for only six hours and not the seven hours per day claimed, and that
counsel for the Respondent Gowans did not have a major involvement in the
larger process of defending against allegations of contempt relative to his
client and several others at the show cause hearing, the Respondent Gowans
argued that the Court's award of costs has already accounted for the
circumstances of his counsel's role, but that he will accept the record in the
court file of the actual hours of the extended sitting in this matter. As for
the Applicants' assertion that $0.445 per kilometre for counsel to drive to the
hearing venue should be reduced to $0.30 per kilometre, the Respondent Gowans
noted that Court of Queen's Bench of Alberta permits $0.43 and the Income
Tax Act permits $0.445. As for the Applicants' assertion of the lack of
evidence supporting an unreasonable and excessive claim of $296.37, as opposed
to something in the order of $150.00 for counsel to stay one night at a hotel,
the Respondent Gowans, having led only his counsel's expense report in chief, produced
in rebuttal hotel receipts showing $89.00 + taxes per night for three nights.
II. Assessment
[3]
My
view, expressed further to my approach in Carlile v. Canada (M.N.R.)
(1997), 97 D.T.C. 5284 (T.O.) and the sentiment of Lord Justice Russell in Re
Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment of
costs is "rough justice, in the sense of being compounded of much sensible
approximation", is that discretion may be applied to sort out a reasonable
result for costs equitable for both sides. I think that my view is reinforced
by the editorial comments (see The Honourable James J. Carthy, W.A. Derry
Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005-2006 (Aurora,
Ont.: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an
assessment of costs is more of an art form than an application of rules and
principles as a function of the general weight and feel of the file and issues,
and of the judgment and experience of the assessment officer faced with the
difficult task of balancing the effect of what could be several subjective and
objective factors.
[4]
I
have consistently held that an appearance by counsel at a hearing within the
meaning of item 14(a) necessarily includes some time in the courtroom before
the scheduled start or resumption times identifying oneself with the Court
Registrar, waiting for the call of the case and otherwise satisfying the Court
Registrar that the hearing is ready to proceed, none of which I consider to be
preparation time embodied in other counsel fee items. Therefore, the abstract
of hearing in the record is a useful, but not absolute, guide for assessing
attendance at hearings which may have had a mix of shorter or longer breaks for
recesses and lunch. The record discloses sitting times of 0932 – 1625 and
0930-1610 hours respectively for this two-day show cause hearing. I allow 7
hours for the first day and 6.5 hours for the second day. These allowances are
consistent with the entries for attendance, but also include certain
preparation time, on page 6 of the solicitor-client bill of the Applicants'
counsel (Exhibit A to the affidavit of Chris J. Watson sworn October 17, 2006).
I have not given any weight to the Applicants' proposition concerning the role
of counsel for the Respondent Gowans: allegations of contempt entail serious
potential consequences inconsistent with a presumption of passive conduct by
one's counsel. The June 29, 2006 findings did not devote much space to the
Respondent Gowans, but they did at para. [88](b) note that his counsel was of
considerable assistance to the Court.
[5]
In
Almecon Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 (A.O.)
at para. [31], I found certain comments in the evidence, although self-serving,
nonetheless to be pragmatic and sensible concerning the reality of a myriad of
essential disbursements for which the costs of proof might or would exceed
their amount. However, that is not to suggest litigants can get by without any
evidence by relying on the discretion and experience of the assessment officer.
The proof here initially was less than absolute, i.e. counsel's expense report
summary conveying the impression of a $300 per night hotel room. A paucity of
evidence for the circumstances underlying each expense makes it difficult for
the respondent on the assessment of costs and the assessment officer to be
satisfied that each expense was incurred as a function of reasonable necessity.
The less that evidence is available, the more the assessing party is bound up
in the assessment officer's discretion which is to be exercised conservatively,
with a sense of austerity pervading the costs, thereby precluding prejudice to
the payer of those costs. However, real expenditures are needed to advance
litigation: a result of zero dollars at assessment would be absurd. In
rebuttal, the Respondent Gowans produced evidence which, if led in chief as it
should have been, might have precluded the Applicants' work in challenging
hotel charges. In fact, the room rate was $89.00 per night + taxes for three
nights (counsel not attempting the drive back to his home city after the second
day's sitting). I allow this charge as presented.
[6]
Part
5(b) in the Alberta Rules of Court, "Schedule E – Tariff of Fees
for Court Officials, Number 3, Amounts Payable by Parties to Witnesses and
Jurors in Civil Proceedings", provides a car allowance at the amount
prescribed by section 15 of the Public Service Subsistence, Travel and
Moving Expenses Regulation under the Alberta Public Service Act.
Said section 15 currently prescribes $0.43 per kilometre for official
government business, a rate which Alberta taxing officers apply
to counsel as well. An interesting point of comparison is section 16 of said
Regulation providing $0.14 per kilometre for travel on government business
where another type of transport is more direct, practical and cost effective.
In this instance, I approve private vehicle use by counsel between the cities
of Grande
Prairie
and Edmonton,
Alberta,
at $0.43 per kilometre in place of the $0.445 per kilometre claimed.
[7]
On
April 4, 2005, in this proceeding, reported at Wanderingspirit v. Salt River First Nation
195,
[2005] F.C.J. No. 550 (A.O.), I assessed the Applicants' costs of the judicial
review. There, I found the Respondents' reply materials to be non-responsive or
unfocused, but I did intervene to their benefit, including the Respondent
Gowans, based on my perception of their general opposition to the bill of
costs. Specifically, I found that I had no jurisdiction, in the absence of visible
authority therefor, to allow counsel fee item 24 (travel). I do however have
authority for the associated travel disbursements: see Marshall v. Canada, [2006]
F.C.J. No. 1282 (A.O.) for a fuller rationale. The Applicants asserted
generally that the claimed costs were excessive as a function of certain
factors, none of which was item 24. I think it only consistent in this
litigation for me to disallow the item 24 claim in the Respondent Gowans' bill
of costs.
[8]
The
initial bill of costs of the Respondent Gowans for $11,652.71 claimed maximum
Column IV counsel fees. An amended bill of costs had cut most of the claims
back to the mid-ranges of Column IV, except for item 14(a), and claimed
$8,599.91. That amended bill of costs is now assessed and allowed at $7,886.63.
"Charles
E. Stinson"
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