Date: 20070822
Docket: T-1145-05
Citation: 2007 FC 847
BETWEEN:
JUNE
STEVENS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
A
copy of these reasons is filed today in Federal Court file T-1146-05 (the T-1146-05
matter) (Jacki McCallum v. Attorney General of Canada) and applies there
accordingly. The Applicant in this matter (the Stevens Applicant) and in
the T-1146-05 matter (the McCallum Applicant) are self-represented litigants who
filed discrete applications for judicial review. These involved almost
identical facts, were heard together and addressed decisions of the Canadian Human
Rights Commission (the CHRC decisions) refusing to address their respective
complaints because of the passage of time. The Stevens Applicant and the
McCallum Applicant (the Applicants) are inspectors with the Canadian Food
Inspection Agency who alleged gender prejudice regarding their duties and pay
classification. The Court set aside the CHRC decisions, referred the matters
back to the Canadian Human Rights Commission for reconsideration and awarded
costs to the Applicants. I issued a timetable for written disposition of the
assessment of the respective bills of costs of the Applicants.
I. The Applicants' Positions
[2]
The
Stevens Applicant presented her bill of costs claiming $5,987.04 for her time
(calculated by using Column III items in Tariff B for the services of counsel)
and $188.15 for disbursements. The McCallum Applicant presented her bill
of costs claiming $6,984.88 for her time (calculated in the same manner as the
Stevens Applicant) and $409.14 for disbursements.
[3]
The
Applicants advanced this argument in chief:
1. We attempted to negotiate with the
Department of Justice costs we were awarded based on Tariff B as we had been
given to understand that is what we were to follow.
2. Department of Justice agreed to pay
only disbursements. They sited [sic] Court File No. A-104-97 where
the decision was that lay litigants were not entitled to counsel fees. We
initially took this to mean we were not entitled to use Tariff B so we modified
our costs based on case law Court File No. T-222-03 and T-346-02 where self
representing litigants had been awarded costs for the time they had spent on
researching, preparing, and filing their case.
3. This submission was also rejected by
Department of Justice.
4. When preparing the bill of Costs we
realized that in Tariff B, counsel fees are specific only to items 13, 14, 16,
21, 22, 24. We have therefore complied and respectfully submit the
attached Bill of Costs using Tariff B but have not claimed any counsel
fees under the aforementioned items….
[4]
In
rebuttal, the Applicants noted the wording of Rule 407: "[u]nless the
Court provides otherwise, party-and-party costs shall be assessed in accordance
with Column III of the table to Tariff B." They argued that Lavigne v.
Canada (Human Resources Development), [1998] F.C.J. No. 855 (F.C.A.) [Lavigne]
held that lay litigants are not entitled to "counsel fees", but it did
not say that lay litigants are not entitled to fees under Tariff B. Tariff B is
entitled: "Counsel Fees and Disbursements Allowable On Assessment",
but uses the term "counsel fees" only in items 13, 14, 16, 21, 22 and
24. The Applicants are not seeking costs under said items and therefore should
have costs for their time assessed under the remaining items in Column III. The
Court in Thibodeau v. Air Canada, [2005] F.C.J. No. 2001 (F.C.) [Thibodeau],
acknowledged that Lavigne held that lay litigants are ineligible for costs
under Tariff B, referred to Canada (A.G.) v. Kahn, [1998] F.C.J. No. 1542
(F.C.T.D.) holding that an appropriate sum could be awarded for a lay
litigant's time and then awarded a lump sum for the lay litigant's time in
conducting his case. The findings in Turner v. Canada, [2001] F.C.J. No.
250 (A.O.), affirmed [2001] F.C.J. No. 1506 (F.C.T.D.), affirmed [2003] F.C.J.
No. 548 (F.C.A.) [Turner] do not help the Respondent's position because
Mr. Turner incorrectly claimed numbers of units exceeding the limits in Tariff
B, had deficient evidence and misconceived the award of costs.
II. The Respondent's Position
[5]
After
noting deficiencies in the Applicants' supporting evidence, the Respondent
conceded their claimed disbursements, but objected to any fees for their time.
The Court in Lavigne above held that lay litigants cannot claim counsel
fees under Tariff B as a service cannot be rendered by a litigant to herself.
The findings in Turner above were that an assessment officer can only
allow a lay litigant's disbursements since only a judge exercises Rule 400
jurisdiction for entitlement and that Rule 405 does not permit an assessment
officer to allow costs for a lay litigant's time in the absence of a prior
direction by the Court. The Court here did not authorize assessment of a lump
sum for fees or any fees under Tariff B.
[6]
The
Applicants' case law cited in chief does not assist their respective positions.
The Court in Comeau v. Canada (A.G.), [2004] F.C.J. No. 1323 (F.C.)
(docket T-222-03) simply awarded costs to the Applicant at the conclusion of
the judicial review, but there was no subsequent assessment of costs. The Court
in Thibodeau above awarded lump sum costs. That did not occur here.
III. Assessment
[7]
The
Applicants' respective positions are succinct and well presented. Unfortunately
for them, the Respondent's position correctly states the prevailing law. The
Applicants' point concerning the title of Tariff B was interesting, but it is
well settled that a court tariff such as that for the Federal Court addresses
fees for the time of counsel. The only remedy for the Applicants would have
been to raise compensation for their time with the judge at the end of the
hearing of the judicial reviews. To assist the Applicants in appreciating some
of the issues associated with compensation (a word carefully chosen by me
as an alternative to the term costs in its traditional meaning of indemnity)
for the time of litigants, I will add some obiter commentary on British
Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371
(S.C.C.) [Okanagan] and on Mark M. Orkin, The Law of Costs, 2d
ed. looseleaf (Aurora: Canada Law Book, 2006), at 2-44 to 2-145 [Orkin].
[8]
In
Okanagan above, the British Columbia government (the
Government) launched a proceeding in the British Columbia Supreme Court (the
trial court) to enforce stop-work orders against the four respondent Indian
Bands (the Bands) to prevent logging of Crown land. The Bands asserted
constitutional protection of aboriginal rights as well as a lack of financial
means for a protracted and expensive trial. They therefore asked the trial
court to order the provincial Crown to pay their legal fees and disbursements
in advance and in any event of the cause. The trial court (the chambers judge)
refused. The British Columbia Court of Appeal (the appeal court), despite
finding no constitutional right to legal fees funded by the Crown, allowed the
Bands' appeal by finding that there was a discretionary power to order interim
costs, which it did in favour of the Bands. The majority opinion in Okanagan
above (the majority opinion) dismissed the Government's appeal. It set the
criteria for interim costs, i.e. impecunious circumstances precluding access to
trial and a prima facie case of sufficient merit meeting the narrow
threshold for an extraordinary exercise of discretion.
[9]
The
majority opinion stated:
I. Introduction
These
two appeals concern the inherent jurisdiction of the courts to grant costs to a
litigant, in rare and exceptional circumstances, prior to the final disposition
of a case and in any event of the cause (I will refer to a cost award of this
nature as “interim costs”). Such a jurisdiction exists in British Columbia. This discretionary
power is subject to stringent conditions and to the observance of appropriate
procedural controls. In this case, for the reasons which follow, I would
uphold the granting of interim costs to the respondents by the British Columbia
Court of Appeal, and I would hold that the Court of Appeal had sufficient
grounds to review the exercise of discretion by the trial court….(pp. 379-380)
The majority opinion summarized (pp.
380-383) the underlying facts and relevant legislation and then addressed the
considerations of the chambers judge:
…Sigurdson J. declined to order
the Minister to pay the Bands’ costs in advance of the trial. He found that his
jurisdiction to make such an order was very narrow and was limited by the
principle that he could not prejudge the outcome of the case. In this case,
liability was still in issue, and Sigurdson J. held that ordering the payment
of costs in advance would involve prejudging the case on the merits. For this
reason, he was of the view that he was precluded from making such an order.
Sigurdson J. added a recommendation that the federal and provincial Crown
consider providing funding to ensure that the cases, which had elements of test
cases, would be properly resolved at trial. He also suggested that the
litigation might be able to proceed if the Bands could work out a contingent
fee arrangement with counsel…. (pp. 383-384)
I think that the notion of
"funding" expressed in this passage was of the Crown simply assuming
financial responsibility from the outset for the conduct of the Bands' case.
This is conceptually different from the traditional notion of costs as an
indemnity because the Bands' money would never be used to pay their lawyers. As
well, the liability for payment to counsel for conduct of the Bands' case would
exist between the Crown and the Bands' counsel, not between the Bands and their
counsel. The Bands would never be out of pocket, an essential traditional
circumstance for litigation costs as an indemnity.
[10]
The
majority opinion then summarized (pp. 384-387) the considerations by the appeal
court and included this passage:
…On the question of funding the
litigation, Newbury J.A. distinguished between a constitutional right to full
funding of legal fees and disbursements, on the one hand, and on the other, the
court’s discretion to make orders as to “costs” as that term is used in the
rules of court and in general legal parlance — meaning a payment to offset
legal expenses, usually in an amount set by statutory guidelines, rather than
payment of the actual amount owed by the client to his or her solicitor…. (p.
384)
The subsequent summary of the appeal
court's considerations did not, in my opinion, suggest that the appeal court's
notion of "funding' intersected with the traditional notion of costs as an
indemnity.
[11]
The
majority opinion continued:
…
V. Issues
This
case raises two issues: first, the nature of the court’s jurisdiction in British Columbia to grant costs on an
interim basis and the principles that govern its exercise; and second,
appellate review of the trial court’s discretion as to costs. The issue of a
constitutional right to funding does not arise, as it was not relied on by the
respondents in this appeal…. (p. 387)
This passage indicates that the notion of
funding by the Crown relative to the traditional notion of costs as an indemnity
is irrelevant for the analysis below. The majority opinion continued:
…VI. Analysis
A. The
Court’s Discretionary Power to Grant Interim Costs
(1) Traditional Costs Principles — Indemnifying the
Successful Party
The
jurisdiction of courts to order costs of a proceeding is a venerable one. The
English common law courts did not have inherent jurisdiction over costs, but
beginning in the late 13th century they were given the power by statute to
order costs in favour of a successful party. Courts of equity had an entirely
discretionary jurisdiction to order costs according to the dictates of conscience
(see M. M. Orkin, The Law of Costs (2nd ed. (loose-leaf)), at p. 1-1).
In the modern Canadian legal system, this equitable and discretionary power
survives, and is recognized by the various
provincial statutes and rules of civil procedure which make costs a matter for
the court’s discretion.
In the
usual case, costs are awarded to the prevailing party after judgment has been
given. The standard characteristics of costs awards were summarized by the
Divisional Court of the Ontario High Court of Justice in Re Regional
Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley
Committee, Inc. (1985), 51 O.R. (2d) 23, at p. 32, as follows:
(1) They are an award to be made in favour of a
successful or deserving litigant, payable by the loser.
(2) Of necessity, the award must await the
conclusion of the proceeding, as success or entitlement cannot be determined
before that time.
(3) They are payable by way of indemnity for allowable
expenses and services incurred relevant to the case or proceeding.
(4) They are not payable for the purpose of
assuring participation in the proceedings. [Emphasis in original.]
The
characteristics listed by the court reflect the traditional purpose of an award
of costs: to indemnify the successful party in respect of the expenses
sustained either defending a claim that in the end proved unfounded (if the
successful party was the defendant), or in pursuing a valid legal right (if the
plaintiff prevailed). Costs awards were described in Ryan v. McGregor (1925),
58 O.L.R. 213 (App. Div.), at p. 216, as being “in the nature of damages
awarded to the successful litigant against the unsuccessful, and by way of compensation
for the expense to which he has been put by the suit improperly brought”.
(2) Costs
as an Instrument of Policy
These
background principles continue to govern the law of costs in cases where there
are no special factors that would warrant a departure from them. The power to
order costs is discretionary, but it is a discretion that must be exercised
judicially, and accordingly the ordinary rules of costs should be followed
unless the circumstances justify a different approach. For some time, however,
courts have recognized that indemnity to the successful party is not the sole
purpose, and in some cases not even the primary purpose, of a costs award.
Orkin, supra, at p. 2-24.2, has remarked that:
The
principle of indemnification, while paramount, is not the only consideration
when the court is called on to make an order of costs; indeed, the principle
has been called “outdated” since other functions may be served by a costs
order, for example to encourage settlement, to prevent frivolous or vexations [sic]
litigation and to discourage unnecessary steps.
The
indemnification principle was referred to as “outdated” in Fellowes, McNeil
v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 (Gen.
Div.), at p. 475. In this case the successful party was a law firm, one of
whose partners had acted on its behalf. Traditionally, courts applying the
principle of indemnification would allow an unrepresented litigant to tax
disbursements only and not counsel fees, because the litigant could not be
indemnified for counsel fees it had not paid. Macdonald J. held that
the principle of indemnity remained a paramount consideration in costs matters
generally, but was “outdated” in its application to a case of this nature. The
court should also use costs awards so as to encourage settlement, to deter
frivolous actions and defences, and to discourage unnecessary steps in the
litigation. These purposes could be served by ordering costs in favour of a
litigant who might not be entitled to them on the view that costs should be
awarded purely for indemnification of the successful party.
Similarly,
in Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, the British Columbia Court of Appeal
stated at para. 28 that “the view that costs are awarded solely to
indemnify the successful litigant for legal fees and disbursements incurred is
now outdated”. The court held that self-represented lay litigants should be
allowed to tax legal fees, overruling its earlier decision in Kendall v.
Hunt (No. 2) (1979), 16 B.C.L.R. 295. This change in the common law
was described by the court as an incremental one “when viewed in the larger
context of the trend towards awarding costs to encourage or deter certain types
of conduct, and not merely to indemnify the successful litigant” (para. 44).
As the Fellowes
and Skidmore cases illustrate, modern costs rules accomplish various
purposes in addition to the traditional objective of indemnification. An order
as to costs may be designed to penalize a party who has refused a reasonable
settlement offer; this policy has been codified in the rules of court of many
provinces (see, e.g., Supreme Court of British Columbia Rules of Court,
Rule 37(23) to 37(26); Ontario Rules of Civil Procedure, R.R.O. 1990,
Reg. 194, Rule 49.10; Manitoba Queen’s Bench Rules, Man. Reg. 553/88,
Rule 49.10). Costs can also be used to sanction behaviour that increases the
duration and expense of litigation, or is otherwise unreasonable or vexatious.
In short, it has become a routine matter for courts to employ the power to
order costs as a tool in the furtherance of the efficient and orderly
administration of justice.
Indeed,
the traditional approach to costs can also be viewed as being animated by the
broad concern to ensure that the justice system works fairly and efficiently.
Because costs awards transfer some of the winner’s litigation expenses to the
loser rather than leaving each party’s expenses where they fall (as is done in
jurisdictions without costs rules), they act as a disincentive to those who
might be tempted to harass others with meritless claims. And because they
offset to some extent the outlays incurred by the winner, they make the legal
system more accessible to litigants who seek to vindicate a legally sound
position. These effects of the traditional rules can be connected to the
court’s concern with overseeing its own process and ensuring that litigation is
conducted in an efficient and just manner. In this sense it is a natural
evolution in the law to recognize the related policy objectives that are served
by the modern approach to costs….
(pp. 387-391)
This passage indicated the majority
opinion's willingness to consider costs beyond the traditional notion of costs
as an indemnity for the successful litigant. It has implications for
self-represented litigants seeking to assess costs for their time.
[12]
The
majority opinion then considered (pp. 391-393) public interest litigation and
noted the caution that the Crown should not be considered as an unlimited
source of funds to preclude the encouragement of marginal applications. The
majority opinion then stated that concerns "about access to justice and
the desirability of mitigating severe inequality between litigants also feature
prominently in the rare cases where interim costs are awarded" (p. 393).
The majority opinion then (pp. 393-403) set up the threshold criteria above for
an award of interim costs, concluded that the Bands' circumstances met them and
affirmed the appeal court's award of interim costs. This latter award uses the
term 'legal costs', but in no way required or suggested that the Bands would
ever have to pay anything to their counsel. Therefore, the costs in said award appeared
to be outside the traditional notion of costs as an indemnity (for payment to
one's counsel). I would not think that the circumstances of the Stevens
Applicant and of the McCallum Applicant could ever meet the criteria for
interim costs. I do think that the result in Okanagan above would
strengthen an argument that a court could award something for the time of a lay
litigant on the basis that costs can be something additional to or other than
an indemnity.
[13]
The
dissenting opinion in Okanagan above (the dissenting opinion) then
weighed in:
… At issue
in this appeal is how trial courts should be guided in their award of interim
costs. When are these advance costs appropriate? How much deference should
appellate courts give to the trial judge’s discretion in the matter?
Four
Indian bands are suing the Crown in right of British Columbia, to establish
aboriginal title over land they wish to log. Because this litigation will be
expensive, they seek interim costs — that is, advance costs awarded whether or
not they are successful at trial. By any standard, this is an extraordinary
remedy.
The
chambers judge could not find a supporting precedent and in the exercise of his
discretion he chose not to grant interim costs. The British Columbia Court of
Appeal, and now my colleague LeBel J., reversed the chambers judge on what
appears to be a new rule for interim costs. With respect for the contrary view,
I conclude that Sigurdson J. interpreted the applicable principles
correctly and can find no basis for reversing his discretion. I would therefore
allow the appeal.
The
appeal raises difficult questions. In particular, how may impoverished parties
sue to establish what is submitted to be constitutionally supported rights?
Constitutional issues, however, were not pursued in this appeal. The
respondents rely solely on the common law rules on costs.
Traditionally, costs —
usually party and party costs — are awarded after the ultimate trial or
appellate decision and almost always to the successful party. Party and party
costs in all Canadian jurisdictions are only partial indemnification of the
litigants’ legal costs. In certain cases, interim costs may be awarded to a
spouse suing for the division of property as a consequence of separation or
divorce. The ratio of the matrimonial cases is clear: a spouse usually
owns or is entitled to part of the matrimonial property; some success on the
merits is practically assured. Thus, the traditional purpose of costs —
indemnification of the prevailing party — is preserved.
But to
award interim costs when liability remains undecided would be a dramatic
extension of the precedent. Furthermore, to do so in a case with serious
constitutional considerations where the Crown is the defending party would be
an unusual extension of highly exceptional private law precedent into an area
fraught with other implications.
The
common law is said to evolve to adapt prevailing principles to modern
circumstances. But the common law of costs should develop through the
discretion of trial judges. This equitable trial-level discretion, developed
over centuries, is essential to the primary traditional use of the
discretionary costs power by courts: to manage litigation and case loads. It
may be that there are public law questions where access to justice can be
provided through the discretionary award of interim costs. Even so, such cases
must lie closer to the heart of the interim costs case law. Such developments
should be initiated by trial courts properly exercising their discretionary
power, not the appellate reversal of that discretion…. (pp. 403-405)
[14]
The
dissenting opinion reviewed (pp. 405-406) certain background and findings and
then continued:
II. Analysis
A. The
Law of Costs
The
standard rule on party and party costs is that they are generally awarded to
the successful litigant at the end of litigation. These costs are a
contribution to the successful party’s actual expense. Full indemnification by
way of solicitor-client costs is infrequently ordered in Canada. Such costs require
unusual and egregious conduct by the losing party. On rare occasions the court
may award solicitor-client costs where equity is met by doing so.
My
colleague points to what he describes as a modern trend in the law on costs —
its use as an instrument to encourage litigation in the public interest. With
respect, I think this proposition mistakes public funding to pursue Charter
claims as an exercise in awarding costs. It is a separate function. Although
the trial judge retains a discretion on the question of costs in such cases,
they have always been awarded at the conclusion of the litigation…
(pp. 406-407)
The dissenting opinion then noted (p. 407) that
the notion of interim costs could lead to a "reasonable apprehension of
bias in favor of the respondent" by calling into question the objectivity
of a court and stated:
The award of costs before trial
is a more potent incentive to litigation than the possibility of costs after
the trial. The awarding of interim costs in the circumstances of this appeal
appears as a form of judicially imposed legal aid. Interim costs are useful in
family law, but should not be expanded to engage the court in essentially
funding litigation for impecunious parties and ensuring their access to court.
As laudable as that objective may be, the remedy lies with the legislature
and law societies, not the judiciary…. (p. 407)
[15]
The
dissenting opinion analyzed (pp. 407-413) the law of interim costs and asserted
this caveat:
In my view, a court should be
particularly careful in the exercise of its inherent powers on costs in cases
involving the resolution of controversial public questions. Not only was such
precedent not required at common law, but by incorporating such an amorphous
concept without clearly defining what constitutes “special circumstances”, the
distinction between the traditional purpose of awarding costs and concerns over
access to justice has been blurred…. (p. 412)
The dissenting opinion disagreed with the
majority opinion's criteria for interim costs, found that the Bands did not
qualify for interim costs and concluded:
… If this
Court enlarges the scope for interim costs it should be seen as a new rule and
not an adaptation of existing law. On the basis of the law on costs at the time
of this application the chambers judge properly exercised his discretion.
Sigurdson
J. was correct in his assessment that liability remains an open question in
this appeal and that ordering interim costs would inappropriately require
prejudging the case. Accordingly, he was justified in concluding that
“[a]lthough [he had] a limited discretion in appropriate circumstances to award
interim costs this case falls far outside that area” (para. 129).
III. Conclusion
The
common law is to advance by increments while generally staying true to the
purposes behind its rules. The new criteria endorsed by my colleague broaden
the scope of interim costs to an undesirable extent and are not supported in
the case law. In my view, the common law rules on interim costs should not be
advanced through an appellate court ignoring and overturning the trial judge’s
correctly guided discretion. This is more appropriately a question for the
legislature. See Watkins v. Olafson, [1989] 2 S.C.R. 750; R.
v. Salituro, [1991] 3 S.C.R. 654; and Winnipeg Child and Family
Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925.
Since
Sigurdson J. committed no error of law and did not commit a “palpable error” in
his assessment of the facts, I would defer to his decision not to exercise his
discretion to make the extraordinary grant of interim costs.
I would
allow the appeal, with each side to bear its own costs.
(pp. 413-414)
[16]
The
dissenting opinion found that the law on costs provides for indemnification,
but not funding in the nature of the Crown assuming outright financial
responsibility for both sides of litigation with no right for the Crown to
recover any costs from the losing and non-Crown side. That finding
addressed interim costs. In my respectful view, its implication for litigants
such as the Stevens Applicant and the McCallum Applicant is that the law
of costs as expressed by the dissenting opinion would preclude the notion of
costs for their time because of the absence of an element of indemnification.
This is not an easy threshold to overcome further to the dissenting opinion's
assertion that the common law should advance by increments via legislative
remedies and exercises of discretion by trial judges. The Federal Court of
Appeal's finding in Lavigne above would make the latter difficult in
this Court. However, as the majority opinion's findings occurred several years
after Lavigne above, a self-represented litigant might rely on them to
argue that the law has moved beyond Lavigne above concerning
compensation for the time of lay litigants.
[17]
For
the benefit of the Applicants, I set out some brief comments on Orkin
above referred to in Okanagan above. Part 204 (pp. 2-44 to 2-49)
addresses the concept of costs as an indemnity for the expense to which a
litigant has been put by reason of the litigation. Part 204 (p. 2-48) notes
exceptions to the notion of indemnification, i.e. costs as a penalty or
deterrent for certain conduct. Part 209.14 (pp. 2-135 to 2-138) addresses the
traditional notion of costs that if a litigant was not liable to pay her
solicitor, said litigant could not have a judgment for costs because there was
nothing to be indemnified against. It notes (p. 2-137) that the "earlier
case law has, however, been overtaken by a recognition that the principle of
indemnification, while paramount, is not the only consideration when the court
is called upon to make an order of costs". This resulted in costs to a
litigant whose lawyer acted gratuitously or pro bono. As well, the
absence in a contingency fee agreement of an actual liability for any payment
of fees does not preclude recovery of costs (the counsel fees) from the other
side.
[18]
Part
209.15 (pp. 2-139 to 2-145) of Orkin above addresses lay litigants and
notes (p. 2-139) that, although there is no legislation in Canada comparable to
that currently in the United Kingdom providing costs for a lay litigant's time,
"the common law appears to be moving towards awarding costs to litigants
who represent themselves." Part 209.15 raises (p. 2-140) the matter of
whether costs for the time of a lay litigant offends the "common law
principle that follows from the concept of costs as an indemnity, namely, that
costs cannot be made a source of profit to a successful party." Part
209.15 then discusses some recent inclination to move the common law towards
costs for the time of a lay litigant and the necessity in doing so to therefore
distinguish (pp. 2-142 to 2-143) three factors, i.e. that the loss of time
and interference with normal life experienced by all litigants, whether
represented or not, has never been considered compensable in costs, that what
is compensable is the lay litigant's time taken to do the work ordinarily done
by the lawyer and that the lay litigant suffered a loss in doing the
lawyer's work because other remunerative activity was thereby precluded. Part
209.15 then discusses several instances of awards for the time of lay litigants
and suggests formulas therefor, i.e. a percentage of the tariff for counsel
fees on the basis that full counsel fee tariff allowances would be excessive or
by simply fixing a lump sum.
[19]
I
think that jurisprudence such as Okanagan above and respected
authorities such as Orkin above represent for lay litigants an
encouraging sense of shift in the common law on costs towards embracing
compensation for the time of lay litigants. However, with specific regard to
the Applicants in these two Federal Court matters, it has not moved so
significantly that an assessment officer could ordinarily read the award of costs
here as a Rule 400(1) exercise of discretion authorizing recovery from the
Crown of compensation for their time. The alternative, which did not occur
here, would have been a petition to the hearing judge for lump sum costs or for
a direction to the assessment officer to allow something for their time. I
therefore have no jurisdiction to allow costs for their time. The bill of costs
of the Stevens Applicant, presented at $6,175.19, is assessed
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