Date: 20071023
Docket: T-1492-04
Citation: 2007 FC 1099
BETWEEN:
CHIEF ROBERT SAM,
COUNCILLOR NICK ALBANY,
COUNCILLOR NORMAN GEORGE,
COUNCILLOR FRANK E. GEORGE,
COUNCILLOR JOHN R. RICE on their own
behalf as
COUNCIL OF THE SONGHEES INDIAN BAND
and on behalf of the SONGHEES INDIAN BAND
Applicants
and
THE MINISTER OF INDIAN AFFAIRS
AND
NORTHERN DEVELOPMENT, THE SUPERINTENDENT
FOR THE SONGHEES INDIAN BAND, SYLVIA ANN
JOSEPH,
ALICE LARGE, ESTATE OF IRENE COOPER by her
Administrators HARVEY GEORGE, CHARLOTTE THOMPSON
AND WILLIAM GOSSE and HARVEY GEORGE,
CHARLOTTE THOMPSON AND WILLIAM GOSSE
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Court dismissed with costs this application for judicial review of a decision
of the Minister of Indian Affairs and Northern Development (the Respondent
Minister) approving the sale of nine lots in the New Songhees Indian Reserve
No. 1A. I issued a timetable for written disposition of the assessment of the
bill of costs of the Estate of Irene Cooper et al. (the Estate Respondents).
The Applicants conceded the disbursements claimed at $269.33.
[2]
The
Applicants' materials presumed that an assessment officer can exercise
jurisdiction under Rule 400(5) which provides that the Court can specify a Column
in Tariff B to use for costs. The Applicants argued that, as the judgment
did not specify which Column to use, the assessment officer should apply Rule
400(3)(c) (importance and complexity of the issues), (d) (apportionment of
liability), (g) (amount of work) and (h) (public interest) to set low Column II
amounts for counsel fees. The Estate Respondents correctly pointed out that
Rule 407 specifies Column III unless the Court directs otherwise. I have
therefore considered the Applicants' materials as an argument for minimum
Column III amounts.
I. The Parties' Respective Positions
[3]
As
the Estate Respondents claimed minimum units ($120.00 per unit) for several
counsel fee items for which entitlement was not an issue, I allow them as
presented. I discounted the Applicants' argument that the hours allowable under
item 14(a) (attendance at hearing) should be limited to the actual time counsel
for the Estate Respondents spent in making his oral submissions (the Applicants
conceded the six hours claimed for the first day, but argued that only one-half
hour of the six hours claimed for the second day should be allowed). I find
that counsel for the Estate Respondents had to be present throughout to
intervene in his professional discretion to preserve the interests of his
clients. That left in issue only fee items 7 (discovery of documents/available
range = 2 to 5 units) claimed at 3 units; 13(a) (preparation for first day of
hearing/available range = 2 to 5 units) claimed at 3 units and 26 (assessment
of costs/available range = 2 to 6 units) claimed at 4 units.
[4]
The
Estate Respondents argued that the considerable amount of sale proceeds payable
to them; the fact that the obligations of the Respondent Minister in a sale of
this type had not previously been addressed in a judicial review; the number of
individual interests involved (five discrete parties); the need for
counsel for the Estate Respondents to assimilate instructions from three
individual clients and attend all hearings; complexity causing this judicial
review process to extend beyond the normal one year contemplated by the
Rules, i.e. two amendments (one contested and including an appeal) to the
application; the circumstances of the Respondent Minister obtaining an
injunction against the Estate Respondents; several case conferences arising out
of the special case management process and the Applicants' attempt to introduce
evidence that was extrinsic to the record before the Respondent Minister when
the original decision was made; the interest of the Estate Respondents
differing from that of the Respondent Minister; the need for counsel to
independently review all materials despite general reliance on the position of
the Respondent Minister; several attempts at settlement and several thousand
pages of records and cases to review as part of case preparation all
warrant the amounts claimed.
[5]
The
Applicants argued that only minimal allowances are warranted because this
judicial review process did not require a defence, reply or counterclaim; the
Estate Respondents did not lead independent records and although this case had
important elements of precedent for all Indian people, the interests of the
Estate Respondents, i.e. hardship as a result of delayed access to the sale
proceeds, were simple and fact-based and did not require any significant
reliance on legal principles. The case preparation and hearing were not
complicated for the Estate Respondents as they relied upon the position of the
Respondent Minister.
II. Assessment
[6]
I
concluded at para. 7 in Starlight v. Canada, [2001]
F.C.J. No. 1376 (A.O.) 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.
[7]
The
Court's decision identified certain issues of duty relative to the Indian
Act, s. 50(4), i.e. whether the Respondent Minister had to verify the
validity of the Certificates of Possession prior to approving possession
and obtain a band council allotment prior to approving possession, owed a
fiduciary responsibility to the band in the conduct of a sale and breached
procedural fairness by denying the band an opportunity to make submissions on
the sale. The Applicants brought a motion resulting in the order dated November
8, 2004, adding the Estate Respondents as parties to this proceeding. The
grounds advanced in support were that the Estate Respondents had expressed a wish
to be joined and that they were necessary parties because any judgment would
affect their interests, and because their presence would assist the Court in
its disposition of the issues.
[8]
The
assertions in the Memorandum of Fact and Law of the Applicants concerning the
Respondent Minister's actions put in jeopardy the interests of the Estate
Respondents. The Respondent Minister's Memorandum of Fact and Law was
lengthy and difficult to prepare. Counsel for the Estate Respondents adopted
both its Statement of Facts and its Submissions and added about four and
one-half pages of succinct submissions of particular relevance for the
interests of his clients. The participation by the Estate Respondents was not
frivolous and their interests were substantial, i.e. paragraph 18 of the decision
dated December 15, 2004, addressing the unusual circumstances of an
injunction sought by one respondent (the Respondent Minister) against another
respondent (the Estate Respondents), but granting it to restrain the latter
from demanding the sale proceeds until after the judicial review, acknowledged
the financial difficulties of the Estate Respondents.
[9]
Paragraphs
11, 17 to 18 and 190 to 241 of Halford v. Seed Hawk Inc., [2006] F.C.J.
No. 629 (A.O.) [Halford] disclose considerations for a co-litigant
adopting the position of another. The circumstances of the Estate
Respondents here certainly do not approximate those of Simplot Canada
Limited in Halford above, but paragraphs 11, 199 and 206 do indicate
possible hazards of a passive watching brief relative to the interests of one's
clients. I find that the remaining counsel fee claims are reasonable in these
circumstances. The bill of the Estate Respondents is assessed and allowed as
presented at $7,320.53
"Charles
E. Stinson"
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