Date: 20070926
Docket: T-595-01
Citation: 2007 FC 961
BETWEEN:
MÉTIS NATIONAL COUNCIL OF
WOMEN
and SHEILA D. GENAILLE
Applicants
and
THE
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 of Appeal matter A-127-05
(the A-127-05 matter) (Métis National
Council of Women and Sheila D. Genaille v. The Attorney General of Canada) and
applies there accordingly. The Applicants (MNCW) in this matter
(the T-595-01 matter) brought an
application for judicial review of the federal government's decision to not
permit them to become a party to an agreement under a program for labour market
development for aboriginal people. MNCW asserted a breach of rights of Métis
women under sections 15 and 28 of the Canadian Charter of Rights and
Freedoms [Charter]. The Federal Court decision (the T-595-01
decision) held that there was insufficient evidence that Métis women were not
already adequately represented and that they have had problems with access to
programs or funds under the current arrangements. The T-595-01 decision also
found insufficient evidence that Métis women substantially supported MNCW as
compared to the Métis National Council and dismissed the application with
costs. The Federal Court of Appeal dismissed its appeal with costs. After some
discussion and adjustments, these assessments of costs proceeded in writing. I
have not summarized the submissions for items 5 (preparation of motion) and 6
(attendance on motion) for two orders silent on costs or directing no costs as
I am satisfied further to my conclusions in Balisky v. Canada (Minister of
Natural Resources), [2004] F.C.J. No. 536 at para. 6 (A.O.) and Aird v. Country Park
Village Properties
(Mainland) Ltd., [2005] F.C.J. No. 1426 at para. 10 (A.O.) [Aird],
that I have no jurisdiction to allow any of the associated costs.
I. The Respondent's General Position
[2]
The
Respondent argued that extensive cross-examinations of MNCW's three affiants
(Bonita Lawrence, Sheila Genaille and Joyce Gus) were central to the T-595-01
decision's findings. As well, certain unnecessary and improper conduct on the
part of MNCW required the Respondent to bring certain motions in turn
substantially lengthening and complicating the proceedings. MNCW's assertions
concerning public interest status are irrelevant because Starlight v. Canada,
[2001] F.C.J. No. 1376 at para. 7 (A.O.) [Starlight] held that the same
point in the respective ranges for counsel fee items need not be used. The
Respondent argued that MNCW does not meet the criteria set in Harris v.
Canada, [2002] 2 F.C. 484 (F.C.T.D.) [Harris] for status as a public
interest litigant. If it had, both the Federal Court and the Federal Court of
Appeal would not have awarded costs against it.
[3]
As
the T-595-01 decision found that there was a complete absence of evidence of
any support by Métis women for MNCW and that MNCW's evidence was made up and
not credible or intelligible, the inescapable conclusion is that this litigation
was restricted to the interests of MNCW. Therefore, MNCW cannot satisfy the
first criterion of Harris above, i.e. that the issues extend beyond the
immediate interests of the parties involved. The problem for MNCW is that its
continued attempts to brand itself as a public interest litigant representing a
particular segment of the public and to bring unmeritorious litigation on
behalf of said segment does not equate to actually representing said segment.
[4]
The
record indicates that this litigation was really about a long-standing power
struggle between the president of MNCW (Sheila Genaille) and that of a rival
organization as opposed to the advancement of Métis women. This litigation was
the culmination of an extended effort by MNCW for direct access to and control
over government-funded programs to the exclusion of rival organizations. MNCW's
Charter arguments should not obscure the real personal and political
purpose, i.e. funding from and recognition by the federal Crown and not public
interest advocacy for Métis women whom the T-595-01 decision found did not support
it. Therefore, MNCW does not satisfy the second criterion of Harris
above, i.e. that the parties do not have a personal or pecuniary interest in
the outcome.
[5]
The
Respondent conceded that the issue of funding (relative to the subject program)
for MNCW had not previously been determined in litigation, i.e. the third
criterion of Harris above. However, MNCW chose to bring this
litigation with none of the requisite evidence despite the existence of the
well-known finding in Native Women's Assn. of Canada v. Canada, [1994] 3
S.C.R. 627 [NWAC], that such evidence was essential to sustain a section
15 Charter claim relative to exclusion from a government program. This
should weigh against any consideration of MNCW as a public interest litigant.
[6]
The
Respondent noted that the Crown would likely be able to bear costs more easily
than most litigants, but that alone should not somehow transform MNCW into a
public interest litigant shielded from costs. The Federal Court of Appeal has
held that a presumed superior financial capacity should not prejudice the
Crown's entitlement to costs. For example, in Canada v. James Lorimer &
Co., [1984] 1 F.C. 1065 at 1076-1077 (C.A.), cited in Canada
(A.G.) v. Georgia College of Applied Arts and Technology, [2003] 4 F.C. 525
at para. 29 (F.C.A.), the Court in overturning the trial judge's refusal to
award costs to spare the unsuccessful litigant further punishment or burden and
because of the Crown's particular capacity to bear its own costs, held:
…It is trite law that costs are not
awarded to punish an unsuccessful party. 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 and the position of the
Crown, even if it be "unusual", is no more relevant than the colour
of a litigant's hair. With respect, none of the reasons given for denying
the appellant costs have anything to do with the case nor any facts connected
with it or leading up to it [emphasis added]….
Although Métis women are a generally
impoverished and disadvantaged demographic, there is no evidence of MNCW's
capacity to bear costs relative to that of the Crown, i.e. the fourth criterion
of Harris above. The Crown should not have to even partially subsidize
this failed litigation which was completely devoid of the required evidentiary
foundation: see Robinson Motorcycle Ltd. v. Fred Deely Imports Ltd., (2005),
44 C.P.R. (4th) 146 at para. 29 (Comp. Trib.).
[7]
The
Respondent argued that the record discloses a number of instances of vexatious,
frivolous or abusive conduct (the fifth criterion of Harris above) by
MNCW which should negate any presumption of public interest status. For
example, three years into this litigation and after the exchange of affidavits
and numerous cross-examinations on those affidavits, MNCW attempted to
introduce substantive new evidence under the guise of authorities in its Memorandum
of Fact and Law. This conduct prompted a motion by the Respondent resulting in
an order dated May 28, 2004 granting it in part and including both a rebuke to
MNCW for its conduct and a compliment on the Respondent's conduct. Another
example was MNCW's improper objection to the continued cross-examinations of the
affiants Sheila Genaille and Bonita Lawrence. This required another motion by
the Respondent which was granted in part. The continued cross-examination of
Sheila Genaille was central to the complete discounting of her evidence in
paragraph 67 of the T-595-01 decision, i.e. made up and not credible or
intelligible.
[8]
The
Respondent asserted that MNCW improperly sought to argue at the hearing of the
judicial review on the basis of a race-based comparison of rival organizations
as opposed to a gender-based comparison. That is, the proposed comparison had
not been previously raised in MNCW's instituting document. The T-595-01
decision at paragraph 45 refused to permit this on the basis of prejudice
to the Respondent at an advanced stage of the proceeding as a consequence of the
raising of an entirely new claim. The Respondent argued that Rules 409 and
400(3)(i) (conduct unnecessarily lengthening proceedings) and (k)
(improper, vexatious or unnecessary steps) should be applied further to these
examples to discount public interest considerations and to increase assessed
costs. The finding in paragraph 72 of the T-595-01 decision that MNCW had
adduced no evidence of differential treatment for Métis women relative to Métis
men, which was the obvious and elementary minimum evidentiary requirement for
such a constitutional challenge, and should therefore pay costs, undercuts
MNCW's public interest argument for low-end costs. The finding in the T-595-01
decision is consistent with that in Bow Valley Naturalists
Society v. Canada (Minister of Canadian Heritage), [2001] 2
F.C. 461 at para. 79 (C.A.), i.e. litigants purporting to act in the
public interest without the requisite evidentiary foundation should not be
shielded from costs. All of the above suggests that public interest factors, if
applied here, should result in increased costs to discourage unmeritorious
litigation that is completely devoid of any evidentiary foundation and that
features repeated instances of improper conduct.
[9]
The
Respondent, in response to MNCW's assertion that the Respondent's objection to
MNCW's choice of comparator group was improper because said objection was
raised for the first time at the hearing of the judicial review and not in the Memorandum
of Fact and Law and because the Respondent handed up a copy of a decision, i.e.
NWAC above, not first reproduced in the Respondent's Book of Authorities,
argued that the Respondent's Memorandum of Fact and Law and the
cross-examination of Marguerite Russell on her affidavit sworn April 29, 2007,
in opposition to the claimed costs, explicitly refutes this assertion. That is,
paragraphs 73 – 78 of the Respondent's Memorandum of Fact and Law expressed the
objection to MNCW's chosen comparator group and paragraph 45 of the T-595-01
decision agreed with the Respondent's position. Marguerite Russell repeatedly
and incorrectly in her cross-examination asserted that this was not so and
admitted that she had not attended the hearing. Both the Respondent and MNCW
cited NWAC above and MNCW reproduced it in its Book of Authorities.
Therefore, MNCW cannot credibly argue that it was taken by surprise. MNCW's
assertion of misconduct is specious and unfounded.
[10]
The
Respondent discounted entirely MNCW's position advanced further to Rule 400(3)(c)
(complexity) and (g) (amount of work), i.e. that this case was not
complex because of the similarity of the Crown' s affidavit led here to another
affidavit led in a previous case, because of alleged similarities of the legal
argument advanced here to that in previous proceedings, because of the supposed
speed (30 days) with which the Court rendered the T-595-01 decision and because
the Court here refused to rule on a ground of review not included in the
instituting application. The problematic conduct by MNCW detailed above
transformed what was supposed to be a summary procedure into a proceeding
exponentially more complex and lengthy than intended (instituted in 2001 but
not heard until 2004). This included MNCW's failed motion to substitute the
estate of Joyce Gus as a party to the proceeding. That the T-595-01 decision
ultimately found many of MNCW's arguments either without merit or improperly
raised does not indicate lack of complexity or that the Respondent did not have
to carefully prepare responses to each point raised in the MNCW's Notice of
Application and Memorandum of Fact and Law.
[11]
The
Respondent noted that asserted violations of section 15 Charter rights
are assessed further to the test in Law v. Canada (Minister of Employment
and Immigration), [1999] 1 S.C.R. 497 at para. 88 [Law]. If an
applicant can meet its three inquiries, a prima facie breach of s. 15 is
established and the burden of proof then shifts to the Crown to justify the
breach further to section 1 of the Charter and the test set in R. v.
Oakes, [1986] 1 S.C.R. 103 [Oakes]. The T-595-01 decision found that
MNCW failed to discharge its burden for the first inquiry of Law above,
i.e. that there had been differential treatment on the basis of one or more
personal characteristics, therefore obviating the need to address the other tests
in Law and Oakes above. Despite this result, the Respondent still
had to prepare carefully for a complete canvass of the application of Law
and Oakes above. Thus, MNCW cannot rely on the early and complete
failure of this litigation as the foundation for its grossly inaccurate
assertion of lack of complexity and time-consuming work for the Respondent's
counsel.
[12]
The
Respondent argued that the extent of overlap of the evidence here with that in
previous proceedings is of minimal relevance given that the initial burden of
the test in Law above falls squarely on applicants such as MNCW. That
is, the primary focus of the Crown in responding to an alleged section 15 Charter
breach is to test an applicant's evidence via cross-examination of its
affiants. Here, such cross-examinations exceeded 24 hours, with that of Sheila
Genaille being particularly tedious and lengthy (10 hours over 2 days). Counsel
for the Respondent then had to painstakingly scrutinize the evidence to
determine and demonstrate that it was, as characterized by paras. 55 and 67 of
the T-595-01 decision, "made up" and not "credible or
intelligible."
II. MNCW's General Position
[13]
MNCW
argued further to Rule 400(3)(c) that the Respondent did not lead any
evidence of complexity and therefore cannot justify anything more than the
minimum value in the range for each counsel fee item. The Respondent's only
submission was a brief letter asserting complexity, extensive
cross-examinations and several interlocutory motions. The deficiency in proof
should minimize assessed costs: see Zündel v. Citron, [2001] F.C.J. No.
379 at paras. 11-14 (A.O.).
[14]
MNCW
argued that Rule 400(3)(c) and (g) as factors here to minimize
assessed costs are intertwined. Although MNCW considered the issues to be of
broad public importance and of particular importance to MNCW because of its
mandate to advance the interests of Métis women, said issues were neither novel
nor complex and required the Respondent's counsel to do only little legal
analysis, drafting, research and development of evidence that had not already
been done for a similar section 15 Charter challenge in Ardoch
Algonquin First Nation v. Canada (A.G.), [2003] 2 F.C. 350
(F.C.T.D.), affirmed [2004] 2 F.C. 108 (F.C.A.) [Ardoch Algonquin]. A
direct textual comparison of the Respondent's affidavit here with the
respondent's affidavit, originally filed in an Ontario Court (General Division)
proceeding subsequently refiled in the Federal Court as an application for
judicial review, in Ardoch Algonquin above confirms that these two
proceedings were very similar in a highly specific sense as opposed to a
general or generic sense. The affidavit here appears to be a lightly edited,
simplified and shortened version of the affidavit led in Ardoch Algonquin
above. There were common counsel for much of both cases and they relied on much
of the same jurisprudence for both.
[15]
MNCW
argued that this case raised issues of gender discrimination not addressed in Ardoch Algonquin
above. It was decided on an issue not raised in either the Respondent's affidavit
or Memorandum of Fact and Law and which was first raised at the hearing of the
judicial review, i.e. MNCW's choice of comparator group, being a new claim not
previously asserted. MNCW had expressly asserted this claim in its Memorandum
of Fact and Law and the Respondent did not advance this objection until
mid-hearing despite having cross-examined the affiants on that very comparator.
The Respondent's counsel also improperly handed up NWAC above coincident
with making the objection, not having included it in his Book of Authorities.
[16]
MNCW
argued that the hearing judge's announcement at the outset that the judicial
review would last only two days and not the scheduled three days, refusal to
hear most of MNCW's planned Charter submissions, rulings from the bench
on all issues and issuance of the T-595-01 decision within 30 days all confirm
the absence of complexity. This proceeding was a simple and direct
reconsideration of NWAC above and raised no Charter or
constitutional issues beyond the narrow question of whether the approach in NWAC
above applied to Métis women as well as Native women. Lack of success does
not indicate complex issues: see Compulife Software Inc. v. Compuoffice
Software Inc., [2002] F.C.J. No. 1509 (A.O.)
[17]
MNCW
argued further to Rule 400(3)(h) (public interest) that Métis women have
given it their mandate to advocate for their interests. This has involved a
multi-faceted educational, political and legal campaign to promote their
interests, including their Aboriginal and equality rights, in overcoming the
legacy of discrimination, poverty and marginalization that characterizes their
existence.
[18]
MNCW
argued that it meets each criterion of Harris above. The record
establishes MNCW's participation in and relevance for a broad range of programs
addressing several areas additional to Métis women thereby satisfying the first
criterion of Harris above, i.e. broad public significance. That MNCW
brought this litigation for the benefit of a clearly disadvantaged group, i.e.
Métis women, meets the second criterion of Harris above, i.e. no
personal or pecuniary interest in the outcome. Relative to the third criterion
(no prior determination) and the fifth criterion (absence of vexatious conduct),
a superior court had not previously addressed those issues. Relative to
the fourth criterion (superior capacity to bear costs) of Harris above,
Rule 400(3)(h) as applied in an assessment of costs ordered against
a public interest litigant does not require consideration of whether the public
interest litigant is affluent or impecunious. Rather, to ensure adequate
representation by counsel of a public interest litigant, it should blunt the
financial impact of said representation in the face of the Crown's clearly
superior financial capacity. As well, the fiduciary and constitutional
obligations of the Crown to Métis women (as the applicants here) are relevant
to this criterion.
III. Assessment
[19]
In
Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage),
[2002] F.C.J. No. 1795 (A.O.), I considered the relevance of public interest
for assessments of costs and concluded that the application of Rule 409 and
400(3) factors against the interest of successful litigants would require
carefully considered discretion. That a judgment for costs does not accord the
unsuccessful litigant special consideration relative to costs as a function of
public interest does not preclude me from applying Rules 409 and 400(3)(h)
to minimize assessed costs. I will not do so here. MNCW undoubtedly is a
positive factor in the community, but I view the finding here, i.e. that there
was no evidence that Métis women as a group act solely through MNCW, as
indicative that this litigation could be considered as essentially an attempt
to broaden or increase its status relative to or at the expense of rival
organizations. The Court's findings did not suggest that existing program
structures had resulted in prejudice to the Canadian public interest in general
or to that of Métis women in particular.
[20]
My
view, often expressed further to my approach in Carlile v. Canada (Minister of
National Revenue) (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.
[21]
In
Almecon Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 at
para. 31 (A.O.), 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 that litigants can
get by without any evidence by relying on the discretion and experience of the
assessment officer. The proof here was less than absolute, but I
think there is sufficient material in the respective records of the Federal
Court and the Federal Court of Appeal for me to gauge the effort and associated
costs required to reasonably and adequately litigate the Respondent's position.
The less that evidence is available, the more that the assessing party is bound
up in the assessment officer's discretion, the exercise of which should be
conservative, with a view to the sense of austerity which should pervade costs,
to preclude prejudice to the payer of costs. However, real expenditures are
needed to advance litigation: a result of zero dollars at assessment would be
absurd.
[22]
In Starlight above, I concluded that the
same point in the ranges throughout the Tariff need not be used as each item
for the services of counsel is discrete and must be considered in its own
circumstances. As well, broad distinctions may be required between an upper
versus lower allowance from available ranges. Generally, I do not think that
this litigation was the most complex of proceedings and I think that it was
simplified somewhat by existing clear case law. However, I do think that more
than a simple and routine analysis of MNCW's position and evidence was required
of the Respondent's counsel relative to careful drafting of materials and
preparation for hearing to preserve the integrity of the Crown's programs as
applied in a sensitive area of Canadian society. I also think that MNCW's
conduct somewhat complicated this proceeding.
A. The
T-595-01 Matter
(1) Counsel
Fees
(a) Counsel fee item 2 (Respondent's record / available
range = 4 to 7 units) claimed at 7 units ($120.00 per unit)
[23]
The
Respondent did not advance submissions particular to the respective items of
costs. MNCW argued that only 4 units should be allowed because little work was
required that was not directly based on the record in Ardoch Algonquin
above. Counsel for the Respondent protracted this proceeding by not
advancing certain critical information from the record in Ardoch Algonquin
above, blocking MNCW's efforts to fill said gap and then raising the late
objection to the comparator group. The Respondent's Memorandum of Fact and Law
incorporated much of the work already done for previous cases and for
interlocutory motions here. Any potential complexity was precluded by the
Respondent's success in preventing MNCW from adducing the missing information
from Ardoch Algonquin above. Motion issues resulting in orders providing
for no costs did not imbue the substantive proceedings with more complexity,
difficulty or work. The small amount of demonstrable work justifies only the
minimum allowance: see Zundel above at paras. 13 – 14.
Assessment
[24]
I
do not find MNCW's point on Ardoch Algonquin above particularly relevant
because the responsibility of the Respondent's counsel was to the particular
circumstances of this proceeding. I allow 6 units.
(b) 5 units claimed
for fee item 5 (preparation for motion) and 3 units per hour claimed for fee
item 6 (attendance on motion)
Assessment
[25]
These
claims address a motion brought at the commencement of the hearing of the
judicial review on behalf of the Estate of Joyce Gus to permit it to continue
the application on behalf of the deceased. Paragraphs 17 – 24 of the T-595-01
decision under the subheading – Motion by Estate of Joyce Gus – ruled on the
motion, i.e. denying leave to continue the application, but expressly admitting
her existing evidence, and did not mention costs. MNCW's position was that it
cannot be inferred that the award of costs in para. 72 for the judicial review
itself was intended to also give costs of this motion to the Respondent because
the reason that the Respondent opposed the motion was to achieve coincident
exclusion of her evidence.
[26]
MNCW
had filed a separate motion for this relief. The Court issued an order separate
from and dated one week before the T-595-01 decision. Notwithstanding that the
same judge rendered the motion order and the T-595-01 decision, the latter
could not purport to vary the former's disposition of costs, i.e. silent on
costs, by allowing motion costs. The hearing judge was functus at that
point. I disallow items 5 and 6 consistent with my reasons in para. 1
above.
(c) Fee item 8
claims (preparation for cross-examination of affiants / available range=2 to
5 units): 4 units for each of Sheila Genaille and Joyce Gus on January 23,
2003; 3 units for David Hallman on February 20, 2003; 5 units for Bonita
Lawrence on February 27, 2003; 3 units for Bonita Lawrence on August 5,
2003 and 5 units for Sheila Genaille on August 8, 2003
[27]
MNCW
argued that six preparation fees for four witnesses, one (Mr. Hallman) of which
was the Respondent's witness, are excessive and that only three fees each at
the minimum 2 units should be allowed because of the duration and nature of the
cross-examinations, absence of complexity or difficulty, the circumstances
associated with the re-examination of Sheila Genaille and Bonita Lawrence and
public interest considerations. Only one preparation fee applicable to both Ms. Genaille
and Joyce Gus should be allowed because their cross-examinations occurred on
the same day (January 23, 2003), were brief (4 hours for Ms. Genaille and 2 hours,
12 minutes for Ms. Gus), both were almost exclusively confined to material
in their affidavits served two years prior, and the small number of
undertakings were satisfied shortly thereafter. The preparation fee for Mr.
Hallman should be the minimum 2 units because he was the Respondent's witness
and the cross-examination was confined to his brief affidavit which was largely
derived verbatim from Ardoch Algonquin above. The preparation fee for
Ms. Lawrence (February 27, 2003) should be the minimum 2 units because her
affidavit had been served two years prior, no reference to the
cross-examination was made in the legal submissions and the cross-examination
devoted very little time to the actual affidavit instead largely focusing on a
comparator group matter ultimately found irrelevant and inadmissible by the
Court.
[28]
MNCW
argued further to Carpenter Fishing Corp. v. Canada, [1999] F.C.J. No.
393 at para. 19 (A.O.), that a second and separate item 8 preparation fee
should not be allowed for Ms. Lawrence (August 5, 2003) and Ms. Genaille
(August 8, 2003). At the end of the cross-examination of Ms. Lawrence (February
27, 2003), the Respondent's counsel stated that he had no further questions and
did not seek or enter an adjournment. There were no unsatisfied undertakings.
Her further cross-examination was very short (28 pages) and was not difficult.
The Respondent's subsequent submissions did not refer to it or her affidavit.
[29]
MNCW
noted that supervising counsel for the Respondent was unable to attend on January 23,
2003 and sent another counsel in his place for the cross-examination of Ms.
Genaille. Several months later after undertakings were satisfied and nothing
further had been said, counsel for the Respondent announced that he needed
further cross-examination of Ms. Genaille and Ms. Lawrence before he could
agree to new dates for completion of the record. The further cross-examinations
overlapped the previous two to a considerable extent. There is no evidence of
relevance, necessity or complexity to justify the excessive claims for a second
preparation fee.
Assessment
[30]
Counsel
for the Respondent could not take any of these witnesses lightly even if he
felt that MNCW would likely not meet its evidentiary burden. I think that
resisting the potential impact of Ms. Genaille was of particular importance to
the Respondent's case preparation. My conclusions in Aird above at
paras. 23 to 26 and in Halford v. Seed Hawk Inc., [2006] F.C.J. No. 629
(A.O.) [Halford] at paras. 121 to 128 indicate that a second item 8 fee
may be claimed for the same affiant. The Respondent did not advance any
evidence of the particular circumstances necessitating what in effect would be
new preparation work. I read the cross-examinations. Contrary to the sense of
MNCW's submissions, there appeared to be unfinished business with regard to Ms.
Genaille, i.e. the closing assertion on January 23, 2003 by counsel for the Respondent
that he had not completed his cross-examination past paragraph 103 of her
affidavit (109 paragraphs in length).
[31]
On
June 17, 2003, the Court ordered Ms. Genaille to attend for continued
cross-examination which was not to be limited to paragraphs 104 and following,
but not to include questions previously asked. Said order also required Ms.
Lawrence to attend to answer follow-up questions. The grounds asserted in the
Respondent's motion record had been that MNCW had improperly objected to
several questions and had not satisfied all undertakings. I allow both item 8
fees as claimed for Ms. Genaille. I allow the item 8 fees as claimed for each
of Ms. Gus and Mr. Hallman. I allow only a single item 8 fee at the
maximum 5 units for Mr. Lawrence as I find that adequate in the circumstances.
The T-595-01 decision did not criticize counsel for the manner in which the
Respondent advanced the objection concerning a comparator group. NOTE: I have
not given weight to MNCW's public interest argument and will not refer to it
again as I address items in turn below, although it was advanced for almost all
items.
(d) Fee item 9
claims (attendance on cross-examination of affiants / available range 0 to
3 units per hour): 3 hours x 3 units per hour and 7 hours x 3 units per hour
for Ms. Genaille on January 23 and August 8, 2003 respectively; 3 hours x 3
units per hour for each of Ms. Gus and Mr. Hallman; and 1 hour x 3 units per
hour and 4 hours x 3 units per hour for Ms. Lawrence on February 27 and
August 5, 2003, respectively
[32]
MNCW
argued that an effective hourly rate of $360.00 for four witnesses is excessive
further to the absence of complexity, difficulty and extended duration. Tariff
B 1(2) requires supporting evidence for items based on an hourly charge. Here,
there is only the brief statement in a paralegal's affidavit in part on
information and belief that she prepared the bill of costs further to her
review of the disbursement file kept by the Department of Justice, but nothing
about the source of the number of hours claimed. The claim for Ms. Gus is
indicative of the excessive claimed costs ultimately to be borne by Métis women
disadvantaged as a group, i.e. 3 hours where the transcript clearly indicates a
duration of 2 hours 12 minutes including a recess. As well, MNCW argued that
the claim of 4 hours for Ms. Lawrence on August 5, 2003, was excessive given
that the verbatim reporter billed for only 1 hour.
[33]
MNCW
argued that there should be some differentiation in claimed rates for one's own
witness (Mr. Hallman) and for an opposing witness respectively because there
are qualitative differences in the respective roles of counsel for each. The
claimed rates do not account for the differing experience of the two lawyers
involved for the Respondent nor is there evidence of their skill and expertise
to justify $360.00 per hour.
[34]
MNCW
argued that the verbatim reporter's invoices are insufficient evidence under
Tariff B 1(2). That is, the invoice for August 8, 2003 (Ms. Genaille) charges
for 7 hours. The transcript itself discloses an actual duration closer to 5.5
hours because it ran for 6 hours 45 minutes interrupted by at least 70 minutes
in recesses including some for Ms. Genaille to alter travel plans because
counsel for the Respondent underestimated the time required. The claim of
$2,520.00 for August 8, 2003, is excessive given lack of reliable evidence of
number of hours, relevance of this cross-examination and skill required of
counsel. Several of the hours should be rated at 0 units per hour given
misleading statements of time required and the inconvenience and additional
expense caused for Ms. Genaille's travel plans. In general, MNCW relied on all
of the factors identified above, as well as asserting that the Court made scant
reference to the cross-examinations, to argue that no item 9 claims should be
allowed because of the failure to prove the actual number of hours.
Assessment
[35]
At
times, I find MNCW's position problematic. For example, its assertion that the
Court made "scant" reference to the cross-examinations presumably
means that the cross-examinations were inconsequential for the outcome. The
T-595-01 decision indeed did not refer often to the cross-examinations, but
when it did, it did so to significant and adverse effect for MNCW's position,
i.e. paragraph 67 making a core finding concerning insufficient or made up
evidence of its level of support by Métis women. As well, a core premise of
MNCW's position before me was that Métis women as a disadvantaged constituency
have endorsed it as their sole or primary advocate. It would be irrational for
me to accept that in the face of the findings otherwise. In other words, it is
MNCW and not disadvantaged Métis women as a constituency who are solely and
directly liable to satisfy the Respondent's costs.
[36]
Charges
by verbatim reporters for brief recesses are common because as the contractor
for a specific deposition, they are not available during a recess for other
remunerative work. United Reporting Service, Ltd. is a well-known and
experienced firm. Although inadvertent clerical errors can occur, I have no
reason to doubt the general integrity of its billing system. That said, the
invoice for Ms. Lawrence (August 5, 2003) charged for 1 hour attendance
and 33 pages of transcript (there was no recess and the concluding time was not
recorded) equating to 33 pages per hour. The invoice for Ms. Genaille (August
8, 2003) charged for 7 hours attendance and 215 pages of transcript equating to
about 30 pages per hour, or about 39 pages per hour if MNCW's estimate of 5.5
hours is used. Mistakes can occur, i.e. the bill of costs incorrectly shows
August 7 for Ms. Genaille. In these circumstances, I think that I can piece
together the appropriate hours for each day. Specifically, the bill of costs
displays inadvertent errors likely attributable to unfamiliarity with the case
and not referring to all materials. For example, the transcript for Ms.
Lawrence (February 27, 2003) indicating a duration of the better part of a day
and the verbatim reporter's attendance charge combine to suggest that the
paralegal may have reversed the hours in preparing the bill of costs.
She should have attributed 4 hours and 1 hour to February 27 and August 5,
2003 (Ms. Lawrence) respectively. If she had had the transcripts in front of
her in addition to the accounting records of the Department of Justice, she
likely would have noticed the error. I have made the switch in the bill of
costs as assessed.
[37]
The
transcripts for Ms. Genaille and Ms. Gus (both January 23, 2003) record start
and end times that indicate durations of 4 and 2 hours respectively. The
verbatim reporter's invoice showed a charge for 6 hours without breaking them
down between the two affiants respectively. As above, the paralegal putting
together the bill of costs likely just worked with the accounting records and
did not compare, as I did, the actual transcripts with the invoice. She
apparently attributed 3 hours in the bill of costs to each affiant by dividing
the invoice's total in half. I have corrected that in my dispositions below. I am
otherwise satisfied that the hours claimed for item 9 need not be further
adjusted.
[38]
As
above, I think that the cross-examination of Ms. Genaille was a key factor for
the Respondent's position, as was that of Ms. Lawrence. I do not so find for
Ms. Gus. I allow the item 9 claims as presented for Ms. Genaille and Ms.
Lawrence subject to the adjustments noted above for the hours. I allow 2 hours
at only 2 units per hour for Ms. Gus. There are instances in which the work of
counsel during examination of one's own witness warrants the maximum. I do not
think so in this instance and allow 3 hours at only 2 units per hour for Mr.
Hallman.
(e) Fee item 10
claims (preparation for case management teleconference / available range = 3 to
6 units): 1 hour x 3 units per hour for each of the April 11, 2003 and January
27, 2004 conferences
Fee item 11 claims (attendance / available
range = 1 to 3 units per hour): 1 hour x 1 unit per hour for these two
conferences (actual durations were 30 and 15 minutes respectively)
[39]
MNCW's
objection was that the first conference related solely to the Respondent's
motion for re-attendance of Ms. Genaille and Ms. Lawrence resulting in an order
silent on costs and that the second conference related solely to the
Respondent's motion to strike certain authorities of MNCW resulting in an order
specifically providing for no costs. Therefore, as above, these items cannot be
assessed.
Assessment
[40]
The
record discloses that counsel for the Respondent initially proposed that the
first conference address general case management issues, i.e. completion of
undertakings and cross-examinations. He mentioned a potential motion to compel
answers to undertakings and refusals. Ensuing correspondence from the
Respondent's counsel maintained that general case management activities must be
addressed in the first conference as well as a potential motion to compel
answers. The first conference resulted in a direction that the Respondent could
file a motion, if any, within 30 days. Otherwise, the parties were to submit a
timetable on consent. I think that the Court's direction was clearly a general
case management provision within the meaning of items 10 and 11. In particular,
provision for a potential motion would not be part of the Court's subsequent
disposition of any motion, if filed. I allow these items as presented for the
first conference.
[41]
The
record discloses that counsel for the Respondent requested the second
conference to address the manner of bringing a motion for the removal of
allegedly prejudicial authorities advanced by MNCW. The resulting direction
required MNCW to file its requisition for hearing within five days as well as
providing for the bringing of the Respondent's motion. It was in the nature of
case management. I allow items 10 and 11 as presented for the second
conference.
(f) Fee item 13(a)
(preparation for hearing / available range = 2 to 5 units) claimed at
5 units for the first day of hearing of the judicial review; fee item
13(b) (preparation / available range = 2 to 3 units) claimed at 2 units for the
second day of hearing; fee item 14(a) (attendance / available range = 2 to
3 units per hour) claimed at 3 units per hour x 9 hours over two days;
fee item 24 (travel time of counsel to attend the hearing / available range = 1
to 5 units) claimed at 4 units and fee item 25 (services after judgment /
available range = 1 unit) claimed at 1 unit
[42]
MNCW
argued that the item 13(a) and 13(b) claims are excessive given minimal
complexity or difficulty of the issues and the complete absence of evidence of
the amount and nature of work done. As well, the Respondent succeeded on an
objection improperly raised. The hearing ended at noon of the second day. The
item 14(a) claim results in $3,240.00 for a hearing lasting only 1.5 days. This
is excessive because it overstates the number of actual hearing hours, does not
reflect adjournments exceeding one hour, does not properly reflect minimal
complexity and difficulty of the issues and was decided on an objection
improperly raised. Only minimum units should be allowed.
[43]
MNCW
argued that nothing should be allowed for item 24 because the Court has not
specifically authorized indemnification for the time of counsel to travel to
the hearing venue. Nothing should be allowed for item 25 given the absence of
evidence of what if anything was done.
Assessment
[44]
I
have taken into consideration the Respondent's submissions concerning
unmeritorious litigation in assessing items 13 and 14. Counsel for the
Respondent acted in a measured and responsible manner. The bill of costs
correctly factored out the hour for the motion addressing Joyce Gus at the start.
I allow items 13(a) and (b) and 14(a) as presented. I disallow item 24 further
to my conclusions in Marshall v. Canada, [2006] F.C.J. No. 1282 at para.
6 (A.O.) [Marshall] that there
must be a visible direction by the Court to the assessment officer specifically
authorizing fees for the time of counsel in transit. Such a direction is not
however necessary to assess the associated travel disbursements. I routinely
allow item 25, as I will here, unless I think that responsible counsel would
not have reviewed the judgment and explained its implications to the client.
(g) Fee item 26 (assessment of
costs / available range = 2 to 6 units) claimed at 5 units
[45]
MNCW
argued that the bill of costs contains several items clearly not assessable
under the Tariff and a number of excessive, erroneous and unsupported claims
that required extensive submissions on the part of MNCW. MNCW should receive 6
units for item 26 because counsel for the Respondent caused unnecessary and
complex procedural issues for conduct of this assessment thereby creating
additional expense which Métis women as an already disadvantaged group can ill
afford. Initially, he requested written disposition of the assessment. After a
timetable had been set, he then indicated by letter that he would prefer
disposition of the assessment by oral hearing if that was more convenient to
counsel for MNCW. Subsequently, he scheduled an oral hearing of the assessment
without first contacting counsel for MNCW as to her availability on that
date or authority to incur travel costs from Ontario to British
Columbia.
Counsel for MNCW requested a teleconference before me in which venue and
mode of conduct were discussed: the oral hearing was replaced with a fresh
timetable for written disposition. If the Respondent does receive item 26 costs,
the allowance should be the minimum 2 units.
Assessment
[46]
There
were aspects of the conduct of this assessment of costs that did not come out
in MNCW's submissions. For example, after the oral hearing had been replaced
with a timetable for written materials, counsel for the Respondent requested
and received on behalf of counsel for MNCW an extension of time to accommodate
the latter's international practice of law. As well, counsel for MNCW asked for
directions on the scope of rebuttal materials with regard to Rule 84 (requiring
that a party first file all of its affidavits before cross-examining
opposing affiants unless consent or leave is given) and whether the Respondent
could file rebuttal affidavits after cross-examining MNCW's reply affiant on
costs. Counsel for the Respondent asserted that Rule 84(1) applies only to
motions or applications and is therefore not applicable to assessments for which
Rule 408(1) applies (authorizing an assessment officer "to direct the
production of books and documents and give directions for the conduct of an
assessment"). He noted that Halford above at para. 2 held that Rule
408(1) provides the assessment officer with broad parameters of conduct and asserted
that my timetable permitted the Respondent to adduce "rebuttal
materials", a term obviously including affidavits, after cross-examination
of MNCW's reply affiant on costs. The Respondent's counsel asserted that the
objection should have been raised long before the expiry of the time limit for
cross-examinations as opposed to just two days before its expiry and that the
objection was premature given that he had not yet even considered whether
rebuttal affidavits would be necessary. Counsel for MNCW renewed her objection.
[47]
I
issued these directions on July 11, 2007:
…An assessment of costs is an
interlocutory process. Rule 408(1) should not be used to create practice alien
to features in other process available under the Rules. See for instance the
findings in Lord v. Canada, [2004] F.C.J. No. 430, 2004 FC 366 (A.O.),
which were consistent with the hearing principle that a party should present in
chief its complete case as opposed to splitting it.
The terms "reply materials" and
"rebuttal materials" used in Rule 408(1) directions for conduct of
assessments of costs were chosen to ensure that parties may advance their
respective positions consistent with principles or practice available in other
process, including the use of affidavits and written submissions. With
particular regard to "rebuttal materials", this does not mean an
unrestricted mandate to repair one's case in chief by adducing new or fresh
evidence readily available all along. That is, evidence which would permit
direct evaluation, by the party liable to pay costs and by the assessment
officer, of given items of costs and which the party presenting the bill of
costs could reasonably have been expected to understand said evidence as
relevant and potentially determinative for the result of the assessment of
costs i.e. invoices, timesheets, etc. The exceptions to this, which might
ultimately prove completely irrelevant for the assessment officer's
considerations, might be for example the introduction in the reply materials of
evidence of extracts from the record of litigation in another jurisdiction,
which the party presenting the bill of costs could not reasonably have been
expected to raise in chief, asserted to have some relevance for the subject
assessment of costs. That might or might not create circumstances requiring
responsible and prudent counsel to consider rebuttal evidence within such
narrow parameters to augment the record.
The Assessment Officer understands the
concern of counsel for the Applicants, but he will not decide anything at this
point given that counsel for the Respondent has apparently not yet decided
whether rebuttal evidence is necessary and therefore the proposed form of any
evidence is not apparent at this time. Counsel for the Respondent should
proceed according to the existing timetable keeping in mind the comments above.
Any rebuttal affidavit and written
submissions, once served, will be accepted by the Registry and held for
directions as to acceptability for filing. Counsel for the Applicant may advise
opposing counsel and the Registry in writing of any objections and their
underlying rationale by August 8, 2007. Counsel for the Respondent may advise
opposing counsel and the Registry of his response by August 17, 2007. If counsel
for the Respondent ultimately decides that rebuttal materials will simply take
the form of written submissions, the Registry should file them.
The Respondent did not file rebuttal
affidavits.
[48]
As
it happened, MNCW's reply materials advanced material from the record of
another Federal Court of Appeal proceeding (A-209-01) and included a request to
set off the $2,250.00 awarded as a lump sum in the cause by order dated April
2, 2002, in Federal Court of Appeal file A-209-01. MNCW had originally sought
its relief by way of action. That approach and subsequent other steps proved
problematic. File A-209-01 was part of the process to eventually frame its
petition for relief in a manner compliant with legislative requirements, i.e. the
T-595-01 matter.
[49]
I
think that my discretion for set-off is broad: see Halford above at
paras. 300 – 306. MNCW's assessment submissions repeatedly pointed to
insufficient evidence on the part of the Respondent. MNCW's material in support
of set-off was essentially a statement that the costs had been awarded to it.
Given omissions that I have noted in MNCW's position, I am not confident that
those costs have not already been satisfied. As well, it would be exceptional
in the general financial framework of the federal government to permit a client
department to have a liability which could not be reversed (no appeal was
taken) remain outstanding through several fiscal years without steps having
been taken to discharge it by paying the $2,250.00 to MNCW. I allow item 26 as
presented and decline set-off.
(2) Disbursements
(a) Disbursements
for verbatim reporter fees and transcripts for the various cross-examinations
of affiants ($4,280.00)
Assessment
[50]
MNCW
advanced submissions consistent with those above for items 8 and 9 to argue
that counsel for the Respondent was responsible for the unnecessary
re-attendances. Therefore, nothing should be allowed for August 5 and 8, 2003.
I note that the re-attendances were buttressed by an order. This claim is
reasonable. I allow the $4,280.00 as presented.
(b) Disbursements
for courier to file motion to strike authorities ($16.50); photocopies (various
amounts totalling $3,818.84); couriers (various amounts totalling $191.89);
online computer legal research (various amounts totalling $474.60) and travel
expenses for the hearing of the judicial review ($1,271.38)
[51]
MNCW
argued that the $16.50 must be disallowed because it relates to the motion to
strike certain authorities of MNCW for which the order directed that there be
no costs. MNCW argued that seven photocopying items totalling $1,098.44 should
be disallowed for the reasons above because they address the motions. The
$15.36 for auto-feed of documents on March 26, 2003, should be disallowed given
the absence of evidence as to what it relates: see Marshall above at
para. 5. The costs for the three remaining photocopying items, i.e. Mr.
Hallman's affidavit ($49.90), the Respondent's Application Record ($1,155.59)
and the Book of Authorities ($1,499.55) should be reduced because in-house
photocopying would have been cheaper than the outside commercial outlets used.
If MNCW had been aware of this approach at the time it was consenting in the
spirit of cooperation to the Respondent's several requests for time extensions
to file these materials, it would have readily agreed to even more time in the
interest of promoting a cheaper approach.
[52]
MNCW
argued further to Marshall above at para. 5 that
proof of purpose and to what they relate are less than absolute for the courier
charges. The dates for some correspond to times when the Respondent was
bringing motions. As well, the materials do not explain why one item ($60.37)
is so much higher than the other six items thereby casting doubt on its
purpose. MNCW argued further to its submissions for couriers and Inter-Church
Uranium Committee v. Canada (Atomic Energy Control
Board),
[2006] F.C.J. No. 1204 at para. 11 (A.O.) that the online computer research
charges should be disallowed given lack of proof of purpose and relevance. As
well, the Federal Court database is an official, free and viable alternative to
commercial and unofficial sites such as Quicklaw.
[53]
MNCW
argued that there is no proof of the reasonableness of the travel expenses.
Métis women are historically disadvantaged, MNCW is based in Ottawa, its counsel
was based in Kingston and the venue was in Ottawa. The Toronto office of
the Department of Justice had conduct dating back to when the matter was an
action (Federal Court file T-1804-98). Toronto counsel
opted to transfer to Vancouver for personal reasons
and surrendered carriage. The Toronto office did not immediately assign
new counsel, but there was counsel available in Toronto willing to
assume carriage. Several months later, the original counsel suddenly resumed
carriage, but from Vancouver. MNCW argued that as the Department of Justice
is the largest employer of lawyers in Canada, the cheaper option of
Toronto-based counsel should have been maintained. MNCW conceded that a party
may opt for out of town counsel, but the resultant extra costs in the face of a
cheaper and viable option should not be passed on to impoverished litigants:
see Sax v. Chomyn, [2000] F.C.J. No. 145 at para. 17 (A.O.). There is no
evidence via invoices that a cost-effective airfare was sought or that the flat
rate Treasury Board allowance for meals was even spent. The GST associated with
disallowed items should also be removed.
Assessment
[54]
For
the reasons above for fee item disallowances relating to the motions, I
disallow the $16.50 and the seven photocopying items identified by MNCW. The
timing of the auto-feed (March 26, 2003) was about when the flurry of
correspondence began in the record eventually resulting in the April 11, 2003
case management conference. This item could be just about anything. I disallow
it. I find the remaining photocopying items reasonable and allow them as
presented. The evidence for couriers included some invoices, but they were
not very informative. I allow a reduced amount of $95.00 for couriers. My
decision in Englander v. Telus Communications Inc., [2004] F.C.J.
No. 440 (A.O.) confirms that I routinely allow costs for online computer
research. However, that process includes consideration of whether all, none or
only part of the research was reasonably necessary, irrelevant or simply in the
nature of cautionary or secondary authorities, keeping in mind the professional
obligation of counsel both to the client for diligent representation and to the
Court for as much assistance as reasonably possible on all aspects of the law
potentially affecting final adjudication on the substantive issues of the
litigation. I examined the dates in the accounting records. I think that some
of the research related to the motions. I allow a reduced amount of $310.00 for
online computer research.
[55]
In
Halford above, I addressed several instances of travel disbursements for
counsel. I find the charges here for ground transportation, hotel, meals and
incidentals reasonable and allow them as presented as they would have been
incurred whether counsel was based in Toronto or Vancouver. I allow the
extra baggage charge of $25.00 for court documents. That leaves $725.00 for the
return airfare on January 18, 2005, between Vancouver and Ottawa. If I can
recognize a reasonable charge given an invoice, I can likely recognize one
without an invoice. I think that there are circumstances when the manner
(supervising counsel from Toronto removing himself and then resuming from Vancouver after
several months) by which carriage of the Respondent's case unfolded could be
justified. I am not convinced that this is one of them. I allow a reduced
amount of $500.00 for airfare as indicative of a flexible airfare (should the
hearing be cancelled, shorter or longer) between Toronto and Ottawa. I reduce
the GST accordingly to reflect disallowed or reduced disbursements.
B. The A-127-05 Matter
(1) Counsel fees
(a) Fee items 19
(Memorandum of Fact and Law / available range = 4 to 7 units) claimed at 7
units; 22(a) (attendance at appeal hearing / available range = 2 to 3 units per
hour) claimed at 3 units per hour x 4 hours and 24 (travel time of counsel
to attend the hearing / available range = 1 to 5 units) claimed at 5 units
Assessment
[56]
I
disallow item 24 for the reasons above. MNCW advanced submissions similar to
those above (T-595-01) for reduction of items 19 and 22(a) to minimum amounts
and also argued that the brevity of the decision indicates that the Court did
not find this matter particularly difficult or complex in rendering its
decision shortly after the hearing. I tend to agree with MNCW that they should
be reduced, but for very different reasons. The manner by which this matter was
brought in the Federal Court was initially flawed and often problematic
otherwise. I do not think that there was ever any prospect of success at the
appellate level which could be of concern to counsel for the Respondent.
Counsel for the Respondent had to carefully prepare, but I think that the "board
was tilted" considerably in his favour. I allow reduced amounts of 6 units
and 2 units per hour for items 19 and 22(a) respectively. The Respondent did
not ask for item 26. I refuse item 26 for MNCW.
(2) Disbursements
(a) Disbursements
for photocopies (various amounts totalling $1,361.68); couriers (various
amounts totalling $58.10); online computer legal research (various amounts
totalling $40.83) and travel expenses for the hearing of the appeal ($1,722.39)
[57]
MNCW
advanced submissions similar to those above (T-595-01) for photocopies and
noted the lack of evidence of cost per page or purpose. The courier charge of
$15.77 for a motion record should be disallowed because the resultant order was
silent on costs. As MNCW has asked for costs of the assessment, the courier
charge of $16.39 for service of the bill of costs should be disallowed. MNCW
argued that the online computer research charges should be disallowed further
to lack of evidence of purpose, relevance or necessity. MNCW objected to paying
for counsel based in Vancouver on the same basis as
above (T-595-01). The individual amounts comprising the total of $1,722.39 for
travel in the bill of costs are $1,141.69 not identified at all, $554.19
described as "March 1, 2006" and $26.51 described as
"Vancouver-Ottawa from February 12,16/06". A final line in the bill
of costs shows "Fees" with no amount opposite it. The supporting
evidence indicates that these amounts addressed travel between February 12 and
19, 2006 from Vancouver to Ottawa, Halifax, Montreal and then back to Vancouver (the hearing
was in Ottawa). This is
excessive if this indeed is for air travel for a matter that had been set well
in advance, apart from being unsupported by evidence. The GST claim should be
disallowed further to the flawed evidence for disbursements.
Assessment
[58]
MNCW
specifically criticized the absence of evidence for two photocopying charges
($66.30 and $198.25) for the courthouse library. They could relate to the
Respondent's Book of Authorities (filed January 17, 2006, and showing a
photocopying charge of $1,059.50) as they occurred the day before. The only
evidence is a library invoice with the account number, quantity, date and
amount. I allow the $66.30 and $198.25 at a reduced single amount of $100.00
and allow the other photocopying charges as presented. I remove the courier
charge of $15.77 associated with the order silent on costs and allow the other
courier charges as presented. I allow the online computer research charges at a
reduced amount of $12.00 as I think some related to motions and orders without
costs.
[59]
The
asserted problem of lack of identification in the bill of costs of the
individual items comprising travel is likely clarified by looking at the
evidence in the record and how the bill of costs was printed. Each amount was
put on its own line in the bill of costs slightly misaligned (by one line) from
the description of the item to which it relates. For example, the credit
card statement clearly shows that the $26.51 relates to "Fees". That
means that the $554.19 should have been aligned with "Vancouver-Ottawa
from February 12, 16/06." The evidence does not so specifically
state, but someone has written $554.19 on the credit card statement beside the
Vancouver-Ottawa leg of this three-city trip (Montreal being a transit change
point on the way back from Halifax to Vancouver). My guess
is that counsel's travel claim for meals etc (which is not in evidence) was
submitted on "March 1, 2006." The $1,141.69 should have been aligned
with it. The supporting affidavit indicates that a legal assistant used the
office disbursement file in assembling the bill of costs. She may not have
looked further than that. The credit card statement also has a notation of
$384.85 roughly opposite Halifax for a moot competition,
the likely explanation for the extra trip legs. I think that irrelevant charges
may have been introduced by simply working with the disbursement file, if that
indeed is what happened. I allow a reduced amount of $1,000.00. As above
(T-595-01), GST is adjusted accordingly.
[60]
The
Respondent's bill of costs in the T-595-01 matter, presented at $32,836.94, is
assessed and allowed at $24,866.01. The Respondent's bill of costs in the
A-127-05 matter, presented at $6,285.81, is assessed and allowed at $4,089.06.
"Charles
E. Stinson"
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