Date:
20130523
Docket:
A-314-12
Citation: 2013 FCA 134
CORAM: EVANS
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
RACHEL
EXETER
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT
EVANS J.A.
Introduction
[1]
This
is an appeal by Rachel Exeter from a decision of the Federal Court, dated June
21, 2012, in which Justice Scott (Judge) granted two motions brought by the
Attorney General, both “with costs to follow”, and dismissed Ms Exeter’s
cross-motion.
[2]
The
motions arise from Ms Exeter’s application for judicial review of a decision in
which the Chairperson of the Public Service Labour Relations Board (Board)
(2012 PSLRB 24) held that the Board has no power to remove the adjudicator
seized of her grievance. Ms Exeter had requested the Adjudicator’s removal on
the ground of bias. She alleges that, having participated in the mediation of
Ms Exeter’s grievances, the Adjudicator cannot impartially determine Ms
Exeter’s claim that she was coerced into the settlement.
[3]
In
his reasons for decision, the Chairperson also stated (at para. 15) that, even
if the Board had the power to remove the Adjudicator from hearing Ms Exeter’s
grievances, it would be inappropriate to exercise it. It would be better, in
his view, for the Adjudicator to determine Ms Exeter’s request for recusal. Ms
Exeter currently has an application for judicial review in the Federal Court
(Court File No. T-943-12) challenging the Adjudicator’s decision not to recuse
herself.
Style of cause
motion
[4]
The
Attorney General’s first motion requested that the style of cause in the
present proceeding be amended by naming the Attorney General as the sole
Respondent. Ms Exeter had named the Attorney General as Respondent, and had
added the Board in parenthesis. In her cross-motion, Ms Exeter argues that the
Chairperson of the Board should be named as the sole Respondent, because it is
his decision that she seeks to set aside in her application for judicial
review.
[5]
I
agree with the Judge that rule 303(1)(a) of the Federal Courts Rules,
SOR/98-106, specifically provides that the decision-maker in respect of whom an
application for judicial review is brought is not to be named as Respondent. Hence,
whether the decision-maker under review is the Board or, as Ms Exeter alleges,
the Chairperson, the Attorney General is appropriately named as the sole
Respondent in the style of cause.
Transfer motion
[6]
The
Judge also granted the Attorney General’s motion requesting that, since the
decision under review was a decision of the Board, Ms Exeter’s application for
judicial review be transferred to this Court from the Federal Court under rule
49 of the Federal Courts Rules. Paragraph 28(1)(i) of the Federal
Courts Act, R.S.C. 1985, c. F-7, provides that applications in respect of
the Board shall be brought in the Federal Court of Appeal.
[7]
I
agree with the Judge. Ms Exeter had requested the Board to exercise its
statutory powers to remove the adjudicator, the Chairperson dealt with the
request by examining the powers of the Board, and its Order denying Ms
Exeter’s request is stated to be an Order of the Board. This is not a decision
of the Chairperson in an “executive” capacity.
[8]
Nor
do I accept Ms Exeter’s argument that the Judge’s decision was erroneous
because it improperly “overruled” a decision by Justice Harrington of the
Federal Court, dated May 7, 2012. That decision granted her motion for an
extension of time in which to file an application for judicial review in the
Federal Court. After reviewing some of the procedural history of this matter,
including its transfer under rule 49 from this Court to the Federal Court,
Justice Harrington ordered that Ms Exeter’s application should be “accepted for
filing” in the Federal Court “in the interests of justice”. This was not a
determination by Justice Harrington that the Federal Court had jurisdiction
over Ms Exeter’s application.
Costs
[9]
Ms
Exeter argues that the Judge erred when he awarded “costs to follow” against
her on both motions, because the Attorney General had not requested costs.
Counsel for the Attorney General says that he asked for costs on the style of
cause motion, but not on the transfer motion. However, he argues, this latter
omission is immaterial because the Court had discretion to award costs in the
cause on its own motion. He relies on Lubrizol Corp. v. Imperial Oil Ltd.
(1989), 103 N.R. 237 (C.A.) (Lubrizol), where this Court reversed an
award of costs on a motion for an interlocutory injunction because counsel had
not requested them, and substituted an award of costs in the cause.
[10]
I
assume that by “costs to follow” the Judge in the present case meant that the
party who succeeded in the application for judicial review would be entitled to
the costs of the motions. That is, he awarded costs in the cause.
[11]
As
counsel for the Attorney General conceded at the hearing of this appeal, there
is no evidence in the record before this Court that he requested costs in
either motion in the Federal Court. The question, therefore, is whether the
Attorney General is correct to say that the absence of a request for costs does
not preclude a judge on an interlocutory motion from awarding costs in the
cause.
[12]
The
general principle is that a court may not award costs when costs were not
requested: see, for example, Balogun v. Canada, 2005 FCA 350. To award
costs in these circumstances would be a breach of the duty of fairness because
it would subject the party against whom they are awarded to a liability when
the party had had no notice or an opportunity to respond: see, for example, Nova
Scotia (Minister of Community Services) v. Elliott (Guardian ad litem of)
(1995), 141 N.S.R. (2d) 346 (N.S.S.C.) at para. 5.
[13]
In
my view, this principle is not limited to final costs, but is equally
applicable to an award of costs in the cause. Such an award imposes a financial
liability, albeit one that is contingent on the outcome of the underlying
proceeding.
[14]
A
judge’s decision whether or not to award costs on a motion cannot later be
overridden by the judge deciding the underlying action or application: Merck
& Co. v. Apotex Inc., 2006 FCA 324, 55 C.P.R. (4th) 81 at para. 15; Polish
National Union of Canada Inc.-Mutual Benefit Society v. Palais Royale Ltd. (1988),
163 D.L.R. (4th) 56 (Ont. C.A.). For this purpose, an order on an interlocutory
motion that is silent on costs is treated as an award of no costs: Janssen-Ortho
Inc. v. Novopharm Ltd., 2006 FC 1333, 57 C.P.R. (4th) 58 at para. 13; Delrina
Corp. (c.o.b. Carolian Systems) v. Triolet Systems Inc. (2002), 22 C.P.R.
(4th) 332 (Ont. C.A.) at para. 36.
[15]
Counsel
for the Attorney General relies on the following statement in Lubrizol
as authority for the proposition that a court may award costs in the cause,
even though no request for costs had been made:
On one minor point, however, it is clear that the
Motions Judge erred. In her Order, she awarded the costs of the Motion to the
plaintiffs. Such costs had not been asked for in the Motion or spoken to
at the hearing and no mention is made of them in the Motions Judge’s reasons.
An award of costs other than “in the cause” in such circumstances is not a
proper exercise of judicial discretion. (Emphasis added)
[16]
While
it is clear from this passage that the party had not asked for the costs of the
motion, it is not clear whether costs in the cause had been requested. In the
present case, however, there is no evidence that the Attorney General requested
even costs in the cause. It seems to me unlikely that the Court in Lubrizol
would have departed from a basic principle of fairness by awarding costs in the
cause when they had not been requested. Accordingly, I do not regard
Lubrizol as authority for the proposition that a court may award costs in
the cause when no costs have been requested.
[17]
In
the absence of any evidence in the record that the Attorney General requested
any costs, the Judge in the present case should not have awarded them, despite
the broad discretion over costs now conferred by rule 400 of the Federal
Courts Rules. The contingent liability imposed by the Judge’s costs in the
cause Order is sufficient to attract the duty of procedural fairness.
Consequently, it was a breach of that duty for the Judge to award costs in the
cause, because Ms Exeter, a self-represented litigant, had not had adequate
notice that she might be required to pay costs, or an opportunity to respond.
Conclusion
[18]
For
these reasons, I would dismiss Ms Exeter’s appeal against the grant of the
Attorney General’s motions, and against the denial of her cross-motion, but
would set aside the order for costs in the Attorney General’s motions.
[19]
I
would not award costs below or on the appeal because success has been divided,
and the procedural confusions that have plagued these proceedings are not
primarily attributable to Ms Exeter.
“John M. Evans”
“I
agree
K.
Sharlow J.A.”
“I
agree
Eleanor
R. Dawson J.A.”
Email this Content