Date: 20080930
Docket: T-874-06
Citation: 2008 FC 1097
BETWEEN:
CAPE
COD FISHING CO.
Applicant
and
LOYOLA HEARN, MINISTER OF
FISHERIES AND OCEANS CANADA and
FISHERIES AND OCEANS CANADA
Respondents
ASSESSMENT OF
COSTS – REASONS
Charles
E. Stinson
Assessment Officer
[1]
Richard
Goldney, the principal of the Applicant, brought an application for judicial
review of a decision of the Respondent, the Minister of Fisheries and Oceans
Canada (the Minister) to introduce a commercial groundfish pilot plan (the Pilot
Plan) for the 2006 fishing season in the Pacific region, to include a rockfish
allocation formula based on equal share per vessel without consideration of
either vessel historical catch or overall length. The judicial review requested
various declarations to the effect that the Minister’s decision was flawed. The
Applicant’s memorandum of fact and law requested an order setting aside the Pilot
Plan relative to the rockfish fishery, or alternatively that the matter be
referred back to the Minister for re-determination, and in the further
alternative that the Applicant be entitled to petition the Minister for
reconsideration.
[2]
The
Applicant filed a notice of discontinuance on November 5, 2007. The hearing
date for the judicial review had been set for November 13, 2007. I issued a
timetable for written disposition of the assessment of the Respondents’ bill of
costs presented further to Rule 402. The framing of these reasons and my
consideration of the issues are consistent with my approach in paragraph 3 of Abbott
Laboratories v. Canada (Minister of Health), [2008]
F.C.J. No. 870 (A.O.).
I. The Position of the Parties
[3]
Essentially,
the Respondents’ position in chief was that the Pilot Plan was of substantial
significance for the public interest and stewardship of the commercial
groundfish fisheries valued in excess of $145 million annually; that the judicial
review could have seriously compromised said stewardship; that case preparation
was fully complete by the time of the discontinuance, that the judicial review’s
purpose was to secure a larger quota and that the complex legal and factual
issues required much analysis and work. The Respondents noted that although
there had been discussions shortly before November 5, 2007 about the
possibility of discontinuance, the Applicant did not guarantee that would
happen and therefore counsel had to complete hearing preparation (counsel fee
item 13).
[4]
Essentially,
the Applicant’s position in reply was that the non-responsiveness of the
Minister to submissions on the need to vacate the Pilot Plan necessitated a judicial
review application to preclude prejudice to the Applicant’s licence. The
Applicant argued that the order dated February 28, 2007 (the Order)
determined that its primary argument was that it had a right to make its
position known to the Minister before a decision on the Pilot Plan and that
departmental officials had interfered with that right. The Applicant
argued further to Rules 409 and 400(3)(i) (conduct) that the bill of costs
should accordingly be denied or substantially reduced.
[5]
The
Applicant argued further to Rule 400(3)(a) (result) that its instructions to
its counsel to seek further time extensions while attempting resolution by the
alternate means of communication with its local member of Parliament (its MP)
gave the relief sought in the judicial review: a letter dated September 4, 2007
from the Minister (the Letter), and therefore the Respondent’s costs should be
denied. An early admission that the Minister had not considered the Applicant’s
materials in making a decision on the Pilot Plan could have precluded the
substantial costs of the preparation for and cross-examination of the
Respondents’ affiant: see Dark Zone Technologies Inc. v. 1133150 Ontario
Ltd., (2002) FCT 1 (F.C.T.D.) [Dark Zone] which held that a party
should be relieved from costs in comparable circumstances. The Applicant argued
further to Rule 400(3)(c) (importance and complexity) and (h) (public interest)
that the Respondents’ conduct should result in denial of costs.
[6]
The
Applicant argued that the Respondents effectively acquiesced to discontinuance
without costs. That is, the Applicant had verbal assurance from its MP that the
Minister was agreeable to a discontinuance without costs although written
confirmation of that never did materialize. Further to Rule 400(3)(o) (any
other matter considered relevant), costs should not be assessable in those
circumstances.
[7]
In
rebuttal, the Respondents argued that the record does not indicate misconduct.
In particular, there is no evidence of interference with the Applicant’s
efforts to put its position before the Minister. By confirming that it was the
Applicant’s disagreement with the Pilot Plan’s formula which prompted this
judicial review, the record undermines the Applicant’s assertion that misconduct
necessitated the judicial review. The Applicant’s memorandum of fact and law
confirmed that its purpose was to quash the Pilot Plan and therefore the
assertion that the Letter essentially gave the relief sought in the judicial
review is incorrect. As well, the Letter did not provide the alternative relief
sought, i.e. direct presentation of the Applicant’s submissions to the
Minister, but rather it simply provided for review and analysis of the
Applicant’s materials by departmental staff. The Respondents argued that the
record does not support the Applicant’s assertion that its participation in the
November 2006 review of the Pilot Plan could have ended the judicial review nor
does it confirm that the Respondents agreed to discontinuance without costs.
[8]
The
Respondents argued that the record does not support the assertion that their
conduct was improper or relevant for this assessment of costs. Rule 400(3)(j)
(failure to admit) is irrelevant because there was no evidence of refusal of
any request for admissions. Rule 400(3)(k) (improper or unnecessary steps) is
irrelevant because the Respondents brought no motions and because there was no
evidence that cross-examination of the Applicant’s affiant was unnecessary.
Public interest as a factor is irrelevant here because the Applicant’s interest
here was private, i.e. perceived financial drag of the Pilot Plan on its
licence. Dark Zone is irrelevant because it addressed the power of the
Court to refuse costs further to discontinuance if in the interests of justice
to do so, which is not the situation here. Further, no order was sought to
dispense with the costs authorized by Rule 402.
II. Assessment
[9]
Further
to my analysis in paragraph 20 of Urbandale Realty Corp. v. Canada,
[2008] F.J.C. No. 910 (A.O.), I am not “the Court” as that term is used in Rule
402. Therefore, I cannot purport to exercise the authority conferred by Rule
402 on the Court to dispense with the Respondents’ entitlement to costs further
to discontinuance.
[10]
I
concluded at paragraph 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. The bill of costs claims
for one less than the maximum value in each assessable counsel fee item, except
for items 6 (appearance on motion), 8 (preparation for cross-examination of
the Respondents’ affiant), 9 (attendance on cross-examination of affiants)
and 26 (assessment of costs) each claimed at the maximum value in their
respective ranges. I allow fee items 2 (Respondents’ record), 5 (preparation
for motion), 6, 8 (preparation for cross-examination of the Applicant’s
affiant), 9 (attendance on cross-examination of Applicant’s affiant) and 13
(preparation for hearing) as presented. I reduce items 8 (preparation for
cross-examinations of the Respondents’ affiant) and 9 (attendance on
cross-examination of the Respondents’ affiant) by one unit ($120 per unit) each
and item 26 by two units. I find the disbursements in order and allow them as
presented at $5,586.37.
[11]
The
Respondents’ bill of costs, presented at $13,746.37, is assessed and allowed at
$12,666.37.
“Charles
E. Stinson”
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