Docket: A-453-08
Citation: 2012 FCA 100
BETWEEN:
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ROGERS COMMUNICATIONS INCORPORATED
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Appellant
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and
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SANDRA BUSCHAU, SHARON M. PARENT,
ALBERT POY, DAVID ALLEN, EILEEN ANDERSON,
CHRISTINE ASH, FREDERICK SCOTT
ATKINSON,
JASPAL BADYAL, MARY BALFRY,
CAROLYN LOUISE BARRY, RAJ BHAMBER,
EVELYN BISHOP, DEBORAH LOUISE
BISSONNETTE,
GEORGE BOSHKO, COLLEEN BURKE,
BRIAN CARROLL, LYNN CASSIDY,
FLORENCE K. COLBECK, PETER COLISTRO,
ERNEST A. COTTLE, KEN DANN,
DONNA DE FREITAS, TERRY DEWELL,
KATRIN DOLEMEYER, ELIZABETH ENGEL,
KAREN ENGLESON, GEORGE FIERHELLER,
JOAN FISHER, GWEN FORD, DON R. FRASER,
MABEL GARWOOD, CHERYL GERVAIS,
ROSE GIBB, ROGER GILODO, MURRAY GJERNES,
DAPHNE GOODE, KAREN L. GOULD,
PETER JAMES HADIKIN, MARIAN
HEIBLOEM-REEVES, THOMAS HOBLEY, JOHN IANNANTUONI,
VINCENT A. IANNANTUONI, RON
INGLIS,
MEHROON JANMOHAMED, MICHAEL J. JERVIS,
MARLYN KELLNER, KAREN KILBA,
DOUGLAS JAMES KILGOUR, YOSHINORI KOGA,
MARTIN KOSULJANDIC, URSULA M. KREIGER,
WING LEE, ROBERT LESLIE,
THOMAS A. LEWTHWAITE, HOLLY LI,
DAVID LIDDELL, RITA LIM, BETTY C.
LLOYD,
ROB LOWRIE, CHE-CHUNG MA,
JENNIFER MACDONALD, ROBERT JOHN MACLEOD,
SHERRY M. MADDEN, TOM MAKORTOFF,
FATIMA MANJI, EDWARD B. MASON,
GLENN A. MCFARLANE, ONAGH METCALFE,
DOROTHY MITCHELL, SHIRLEY C.T. MUI,
WILLIAM NEAL, KATHERINE SHEILA NIMMO,
GLORIA PAIEMENT, LYNDA
PASACRETA,
BARBARA PEAKE, VERA PICCINI, INEZ
PINKERTON,
DAVE PODWORNY, DOUG PONTIFEX,
VICTORIA PROCHASKA, FRANK RADELJA,
GALE RAUK, RUTH ROBERTS,
ANN LOUISE RODGERS, CIFFORD
JAMES ROE,
PAMELA MAMON ROE, DELORES
ROSE,
SABRINA ROZA-PEREIRA, SANDRA
RYBCHINSKY,
KENNETH T. SALMOND, MARIE SCHNEIDER,
ALEXANDER C. SCOTT, INDERJEET SHARMA,
HUGH DONALD SHIEL, MICHAEL SHIRLEY,
GEORGE ALLEN SHORT, GLENDA SIMONCIONI,
NORM SMALLWOOD, GILLES A. ST.DENNIS,
GERI STEPHEN, GRACE ISOBEL STONE,
MARI TSANG, CARMEN TUVERA, SHEERA WAISMAN,
MARGARET WATSON, GERTRUDE WESTLAKE,
ROBERT E. WHITE, PATRICIA JANE
WHITEHEAD,
AILEEN WILSON, ELAINE WIRTZ, JOE WUYCHUK,
ZLATKA YOUNG
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Respondents
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
Charles E. Stinson
Assessment
Officer
[1]
These
reasons apply here (the A-453-08 matter) as well as to Federal Court files
T-898-07, Sandra Buschau et al v Attorney General of Canada (the
T-898-07 matter) and T-2006-10, Sandra Buschau et al v Rogers Communications
Incorporated (the T-2006-10 matter).
[2]
Paragraphs
1-4 of the Court’s Reasons for Judgment dated September 9, 2009 (the Reasons)
read:
INTRODUCTION
[1] This appeal is the latest
instalment in a long running dispute between Rogers Cablesystems Inc. (now
Rogers Communications Inc.) (Rogers) and the employees and former employees
(the Employees) of a Vancouver cable company, Premier Communications Ltd.,
(Premier), which Rogers acquired in 1980. When
it acquired Premier, Rogers also acquired the rights and
obligations of the employer under the pension plan (the Premier Plan or the
Plan), which Premier established for the benefit of its employees in 1974. Shortly
after Rogers acquired Premier, it became
known that there was a significant actuarial surplus in the Plan. Rogers tried to appropriate that
surplus. The Employees claimed it as their own. Rogers and the Employees
have been fighting over that surplus ever since.
[2] This appeal arises from the
decision of the Acting Superintendent of Financial Institutions dated April 27,
2007 (the Decision), which approved amendments to the Plan to revoke
a merger of the Plan with other Rogers’ pension plans and to re-open the
Premier Plan to new members. The Acting Superintendent has since been appointed
Superintendent and so, I will refer to her as such.
[3] The Superintendent dismissed
the Employees’ application to terminate the Plan and to distribute the
actuarial surplus. The Employees’ application for judicial review of the
Decision was allowed by O’Keefe J. of the Federal Court in a decision reported
as Buschau v Canada (Attorney General) and Rogers Communications Inc,
2008 FC 1023, [2008] FCJ No 1283. Rogers
now appeals to this court from the decision of O’Keefe J. Quite apart from the
merits of the Decision itself, one of the major issues is the extent to which
the Superintendent’s discretion was limited by the decisions of the courts
which have considered the case in the course of the long and acrimonious
litigation involving this pension plan.
[4] For the reasons which follow,
I would allow the appeal and set aside the order of the Federal Court. I would
award Rogers its costs in this Court and
in the Federal Court.
[3]
Paragraph
5 of the Reasons then began a “history of this litigation in the courts
of British Columbia and in the
Supreme Court of Canada.” Ensuing paragraphs referred to the allegation that
Rogers Communications Incorporated [RCI] attempted to use the surplus in the
Premier Plan to compensate for deficits in pension plans associated with RCI
and its corporate affiliates. Paragraphs 23-25 of the Reasons
indicated that, after decisions in several courts, including the Supreme
Court of Canada, the Premier Plan members applied to the Office of the
Superintendent for termination of the Premier Plan, for replacement of RCI as
administrator of the Plan and for a winding up and distribution to the Premier
Plan members of any surplus funds. RCI opposed this request and sought approval
to revoke its merger of the Premier Plan with other RCI plans and to re-open
said Plan to new employees.
[4]
Paragraphs
26-38 of the Reasons then addressed the proceedings before the Superintendent,
including the latter’s findings that RCI could re-open the Plan and that the
requests by the Premier Plan members should be rejected, effectively ending the
latter’s attempt for payment out to them of the Plan’s actuarial surplus.
The Premier Plan members applied for judicial review (the T-898-07 matter) of
the Superintendent’s decision. Paragraph 39 of the Reasons noted that the
Federal Court identified seven issues. Paragraphs 40-42 indicated that the
Federal Court went directly to the fifth issue, i.e. did the Superintendent err
in refusing to exercise her discretion under subsection 29(2) of the Pension
Benefits Standards Act, RSC 1985, c 32 (as amended) [PBSA], answered said
question in the affirmative, allowed the application for judicial review and
remitted the matter to the Superintendent for redetermination.
[5]
Paragraph
43 of the Reasons read:
[43] The key issue in this appeal is
whether the Superintendent either improperly exercised her discretion or made a
reviewable error of law when she allowed Rogers/Cable Inc. to revoke the merger
of the Plan and to amend the Plan to open it to new employees of Cable Inc. In
particular, if the Superintendent was entitled to allow Rogers/Cable Inc. to
reopen the Plan to new members, then it was not unreasonable for her to find
that the “continued existence of the Plan is a worthy goal and that the
employer is continuing to provide the promised benefits and complying with
solvency requirements.” If, on the other hand, the Superintendent was not
entitled to allow the amendment to reopen the Plan, then the argument that the
continued existence of the Plan serves any of the purposes of the Plan or of
the PBSA is harder to sustain.
[6]
Paragraphs
44-66 then analyzed the issue, including consideration of the prior
proceedings, found the Superintendent’s decision to have been reasonable and
set aside the Federal Court decision (the T-898-07 matter) with costs here and
below. On April 8, 2010, the Supreme Court of Canada denied leave to
appeal this Court’s decision.
[7]
On
June 30, 2010, the Premier Plan members put to the Superintendent eight
questions which they claimed either had not been addressed in her 2007
decision, or which had subsequently arisen. By letter dated November 4, 2010,
the Superintendent found that most of the questions concerned or related to the
Superintendent’s April 27, 2007 decision and that there was no legislative
authority to re-open or reconsider a past decision. The Federal Court addressed
the Premier Plan members’ application for judicial review (the T-2006-10
matter) of the November 4, 2010 decision by dismissing it with costs to RCI.
[8]
I
issued timetables for written disposition of the assessment of the respective
bills of costs of RCI in each matter.
The T-898-07
Matter
Counsel Fees
Item 2: 7 units ($130 per unit) claimed
for the Respondent’s record and materials (available range = 4-7 units /
hereafter, the available range for each fee item appears in brackets);
Item 5: 7 units claimed for preparation and filing of RCI’s motion to strike
Albert Poy affidavits (3-7 units); Item 6: 15 units claimed for a 5-hour
appearance on the motion (1-3 units per hour); Items 13(a) and 13(b): 5
and 3 units respectively claimed for preparation for first day (2-5 units)
and second day (2-3 units) of the judicial review hearing; Item 14(a): 34.5
units claimed for the appearance of first counsel on an 11.5 hour-hearing
(7 and 4.5 hours respectively for the two days) (2-3 units per hour); Item
25: 1 unit claimed for services after judgment (1 unit); Item 26: 6 units
claimed for assessment of costs (2-6 units); GST: $510.25 (5%) and PST: $714.35
(7%)
Disbursements
Registry fees
($16.96); Courthouse library copies ($88.10); printing ($1,539.38); photocopies
($779.89); couriers ($147.60); computer research ($288.24) and
facsimiles ($26.78)
[9]
RCI
discounted the position of the Applicants (the Buschau litigants) on the proper
unit value by arguing further to paras 3-6 of Bujnowski v Canada, 2010
FCA 49; para 26 of Horn v Canada (Minister of National Revenue – MNR),
2010 FC 501 and para 3 of Ferme Avicole Kiamika Inc v Canada (Minister of
Agriculture), 2006 FC 1392, that the value to be used is the one in effect
at the time the request for an assessment of costs is made, i.e. the current
$130 per unit.
[10]
RCI
agreed with the Buschau litigants that only the time spent in court can be
claimed for fee items 6 and 14(a). The work under fee items 13(a) and (b)
related to general preparation for the hearing of the judicial review and was
not limited to “witness items” as asserted by the Buschau litigants.
[11]
RCI’s
affidavit supporting its bill of costs advanced a number of receipts, but noted
that receipts for certain disbursements were not available, i.e. computer
research and facsimiles. RCI corrected its bill of costs by reducing the
claimed courthouse library copies from $88.10 to $69.25.
[12]
RCI
argued further to para 34 of Carr v Canada, 2009 FC 1196 [Carr]
and para 35 of Balogun v Canada, 2010 FCA 202 that photocopy
charges whether in-house or external are permissible disbursements; further to
para 18 of Kremikovtzi Trade v Phoenix Bulk Carriers Ltd, 2009 FCA 182 [Kremikovtzi]
that courier charges are permissible; further to para 17 of Kremikovtzi
and para 33 of Target Event Production Ltd v Paul Cheung and Lions
Communications Inc, 2011 FC 83 that computer research is permissible and
not limited by flat rates and further to para 36 of Carr that facsimiles
are permissible.
[13]
The
Buschau litigants argued that RCI has, in every instance but one for the three
bills of costs, claimed the maximum amount without explanation although
these matters were not trials, i.e. no discoveries, witnesses, experts etc.,
and has provided little evidence. Further to para 21 of Metis v Canada, 2007 FC
961, the less that evidence is available, the more one is bound by the
discretion of the assessment officer, the exercise of which should be
conservative with a view to the sense of austerity that should pervade costs.
[14]
The
Buschau litigants argued that the case law is clear that the unit value, i.e.
$120, in effect in 2008 at the time of this matter, should have been used.
[15]
The
Buschau litigants asserted that the court record confirms the duration of the
motion hearing was 2 hours 6 minutes (10:05 am to 12:11 pm) inclusive of breaks
and not the 5 hours claimed for fee item 6.
[16]
The
Buschau litigants argued for minimum allowances for fee items 13(a) and (b)
given a judicial review does not require the work listed in the Tariff for
those items, i.e. preparation of witnesses, subpoenas and direct examinations
or cross-examinations.
[17]
The
Buschau litigants argued that, just as for fee item 6, RCI has inflated the
duration for fee item 14(a), i.e. 7 hours claimed for the first day
given the court record indicates 9:37 am to 4:35 pm inclusive of the lunch
break and recesses and 4.5 hours claimed for the second day given the recorded
duration was 9:30 am to 2:09 pm inclusive of the lunch break and recesses. Fee
item 14 is restricted to “in Court” time because fee item 13 already
compensates for preparation time. Similarly, the maximum fee item 26 claim is
excessive given litigation without witnesses, experts or expert reports
with complicated disbursement issues. The only complexity in this assessment
of costs stems from RCI’s unjustified claims for maximum amounts and from
its inflated claims for hours.
[18]
The
Buschau litigants asserted that RCI did not establish the per page cost of
photocopies. Further to Abbott Lab v Canada, 2009 FC 399
[Abbott Lab], Janssen-Ortho v Novopharm, 2006 FC 1333 and Windsurfing
v Bic Sports (1985), 6 CPR (3d) 526, there must be evidence of the actual
cost, what was copied and its relevance, none of which RCI even attempted to
provide.
[19]
The
Buschau litigants argued further to Denmar Equipment v 342699 Ltd, 2004
BCSC 1169 that there was no evidence of the necessity for computer research and
that a litigant cannot recover more than the normal per search fees if its
lawyer pays a flat monthly fee.
[20]
The
Buschau litigants argued generally further to para 15 of Abbott Lab that
assertions as here by counsel in a supporting affidavit, i.e. everything was
reasonable and necessary, are actually unhelpful and unnecessary because it is
the assessment officer who must make such determinations. The claimed fees of
$10,205 (78.5 units x $130 per unit) should be reduced: items 2 (4 units); 5 (3 units);
6 (2 hours x 2 units per hour = 4 units); 13(a) and (b) (2 units each); 14(a)
(5 and 3 hours at 2 units per hour = 16 units); 25 (1 unit) and 26 (0
units) for a total of 32 units x $120 per unit = $3,840. Nothing should be
allowed for printing, photocopies and computer research.
Assessment
[21]
Paragraphs
15 and 16 of Madell v Canada, 2011 FCA 105, set out
my general approach for assessments of costs and for counsel fee items
respectively. In the circumstances particular to a matter, assessment
officers necessarily exercise broad discretion and opposing parties must both
contribute to the narrowing of costs issues: see Holzapfel v Matheusik,
14 BCLR (2d) 135.
[22]
I
have examined the respective Records and other materials that were before the
Court. A decades-long struggle of this sort means that the parties
and their legal representatives should have been, further to the continuum
of litigation, very familiar with the overarching issues between them.
However, the substantive rulings on each piece of litigation between these
parties set the stage for new litigation and presumably fresh issues. I am
assessing only in the context of the T-898-07 matter and not those of other
matters. I allow 5 units for fee item 2. RCI has correctly stated the law on
unit value. I therefore apply $130 per unit.
[23]
Paragraph
6 of Armstrong v Canada (Attorney General), 2010 FC
1189 outlines generally my approach in resolving fee items 13, 14 and 15
(written argument). By extension, as circumstances require, I use a similar
approach for fee item 5 and 6 issues, including apportionment of hours and
units.
[24]
I
have examined the respective materials before the Court for both the motion to
strike the Poy affidavits and the hearing of the application for judicial
review. Their respective differing issues varied the demands on counsel. This
litigation began in the third decade of what is now, before me, the fourth
decade of the struggle between these litigants for control of pension monies.
While that struggle was significant enough at stages to engage Supreme Court of
Canada disposition of certain issues, that does not automatically mean maximum
costs for all interlocutory, corollary or consequent issues as they arise. I
allow 5 units for fee item 5.
[25]
Relative
to start and end times of 10:05 am and 12:11 pm respectively for the Poy
motion, I find that a duration of 2.5 hours is appropriate for the fee
item 6 calculation to account for counsel getting settled in the courtroom.
Paragraphs 26 and 36 of Cockerill v Fort McMurray First Nation #468 [Cockerill],
2010 FC 1002 and paragraph 21 of Shields Fuel Inc v More Marine Ltd,
2010 FC 228 are examples of the use of fractions for hearing cost
calculations. I allow 3 units per hour.
[26]
I
allow fee items 13(a) and (b) at 4 and 2 units respectively. I find that
durations of 6 and 4 hours respectively are appropriate for the two days
associated with the fee item 14(a) calculation. I am not inclined to
apportion the available values in the range among those 10 hours. I allow
3 units per hour.
[27]
I
routinely allow fee item 25, as I will here, unless I think that counsel would
not have reviewed the judgment and explained its implications to the client.
There were some synergies between the issues of the respective bills of costs.
RCI claimed fee item 26 for each bill. I do not think that a single fee
item 26 allowance, to be apportioned among the three bills of costs,
is appropriate given these were discrete pieces of litigation albeit with
a common source. I allow 3 units for item 26 in the T-898-07 matter.
[28]
Disbursements
are payments for disinterested third-party services charged to the client and
which are not surviving or ongoing benefits to a law firm or its subsequent
clients: see paras 28-31 of Peerless Ltd v Aspen Custom Trailers Inc,
2010 FC 618. Paragraph 65 of Abbott Laboratories v Canada (Minister of
Health) (2008), 66 CPR (4th) 301 [Abbott] summarizes my
practice for photocopies, including the need “to strike the appropriate balance
between the right of a successful litigant to be indemnified for its reasonably
necessary costs and the right of an unsuccessful litigant to be shielded from
excessive or unnecessary costs.” The proof here was less than absolute. Over
$1,200 of the printing claim addressed Poy motion materials and RCI’s Record.
An invoice dated July 19, 2007 for $154.26 is unexplained, but likely related
to RCI’s motion record filed the next day to strike the Poy affidavits. Another
invoice for $134.59, dated March 4, 2008, bears the note “To make another copy
of Applicants’ Authorities,” the specific justification for which could have
been made in the supporting affidavit, but was not. I reduce the printing claim
by $134.59 to $1,404.79.
[29]
There
was activity in the fall of 2007 associated with setting this matter down. RCI
filed a motion on December 12, 2007 for an extension of time to file its
Record. The Court’s order dated December 19, 2007 granting the extension on
consent was silent on costs. Orders silent on costs do not give rise to
entitlements to costs: see Falcon Ventures Ltd v Echoes (The), [1982]
FCJ No 703; British Columbia Forest Products Ltd v Canada (Minister of
Industry, Trade and Commerce), [1982] FCJ No 910; Industrial Milk
Producers Assn v British Columbia Milk Board, [1988] FCJ No 537
and Metaxas v Galaxies (The), [1989] FCJ No. 564. As well, the judgment
on the substantive issues of a lawsuit cannot purport to vary an interlocutory
order silent on costs by adding a direction that costs are now payable:
see paragraphs 34-35 of Cockerill above. The supporting affidavit
asserts that the courthouse library copies were part of preparation for the
hearing of the judicial review. Some occurred about the time of the extension
motion. I allow them at the reduced amount of $69.25 proposed by RCI. The
evidence supporting the claim of $779.89 is that the law firm’s “records
indicate that over the period in question there was $1039.97 [sic],
before tax of in-house photocopying done in relation to this file.” No
details are given. I allow $675.
[30]
The
courier receipts seem in order except for the two dated December 12, 2007
totalling $21 for deliveries to opposing counsel and to the Registry,
likely the time extension motion. I remove $21 leaving $126.60 allowed for
couriers. I allow Registry fees and facsimiles as presented at $16.96 and $26.78.
[31]
Paragraph
111 of Abbott above outlines my usual concerns with computer research. A
law office program of disbursement listings generally affords limited
information on relevance and necessity. The evidence here is that the records
for computer research, and for facsimiles, cannot be located. I allow a
reduced amount of $190.
The A-453-08
Matter
Counsel Fees
Item 1: 7 units
claimed for preparation and filing of originating document, other than a notice
of appeal to the Federal Court of Appeal, and application records (4-7 units);
Item 2: 7 units claimed for preparation and filing of all replies, i.e. RCI’S
reply to the cross-appeal of the Buschau litigants (4-7 units); Item 17: 1 unit
claimed for preparation, filing and service of notice of appeal (1 unit);
Item 18: 1 unit claimed for preparation of appeal book (1 unit); Item 19: 7
units claimed for memorandum of fact and law (4-7 units); Item 20: 1 unit
claimed for requisition for hearing (1 unit); Item 13(a): 5 units claimed for
preparation for hearing (2-5 units); Item 22(a): 15 units claimed for the
appearance of first counsel on a 5-hour hearing (2-3 units per hour); Item
25: 1 unit claimed for services after judgment (1 unit) and Item 26: 6
units claimed for assessment of costs; GST: $331.50 (5%) and PST:$464.10 (7%)
Disbursements
Registry fees
($203.30); UBC library copies ($56); Courthouse library copies ($94.35);
agent’s fees ($118.30); printing ($1,024.10); Appeal Book ($3,348.42); couriers
($133) and photocopies ($382.49)
[32]
RCI’s
submissions corrected the claim for printing from $1,049.33 to $1,024.10 and
relied on the authorities cited above in the T-898-07 matter for its
disbursements in this matter. RCI conceded the assertion of the Buschau
litigants that fee items 1 and 2 are not allowable, i.e. fee item 1
specifically excludes a notice of appeal and fee item 2 by its definition does
not apply to a notice of cross-appeal.
[33]
RCI
argued that, although the language used in the bill of costs for fee item 13(a)
is the default description contained in Tariff B, general hearing preparation
is clearly being claimed. RCI accepted as above that fee item 22(a) is limited
to the actual time in court. RCI relied on the receipts exhibited to its
supporting affidavit and the latter’s assertion that the disbursements were
necessary and reasonable for this matter.
[34]
The
Buschau litigants argued as above that, as this was not a trial and no review
of transcript evidence, preparation of witnesses and issuance of subpoenas
were required, as for example contemplated in the Tariff B wording for item
13(a), the claimed maximum counsel fees are not justified. As above, the 5
hours claimed for fee item 22(a) are excessive given the court record indicated
a 9:30 am start and a 2:37 pm finish inclusive of the lunch break and recesses.
Only 3 hours at 2 units per hour should be allowed. As above, there is no
explanation of the per page or internal cost of photocopies nor what was
copied. The Buschau litigants argued that the claimed fees of $6,630 (51 units
x $130 per unit) should be reduced: (their suggested formula included fee item
1, which I have removed) items 17 (1 unit); 18 (1 unit); 19 (4 units); 20 (1
unit); 13(a) (2 units); 22(a) (3 hours x 2 units per hour); 25 (1 unit) and 26
(0 units) for a total of 16 units x $130 per unit = $2,080. The Buschau
litigants objected generally to disbursements because of the absence of proof
of their relevance and reasonableness.
Assessment
[35]
The
submissions before me did not mention the impact, if any, of the cross-appeal
(which asked for an order terminating and winding up the Premier Pension Plan
and alternatively remitting the matter back to the Superintendent for that
purpose) on issues associated with the bill of costs. The Reasons did not
refer to or use the term “cross-appeal”. Paragraphs 24 and 32-38 did refer
to the subject matter of the cross-appeal, i.e. termination of the Plan,
in the context of a summary of the Superintendent’s decision. Paragraph 43
set out above alludes to the subject matter of the cross-appeal, i.e. if “the
Superintendent was not entitled to allow the amendment to reopen the Plan,
then the argument that the continued existence of the Plan serves any of
the purposes of the Plan or of the PBSA is harder to sustain.” The finding in
paragraph 65 “that the application of res judicata does not prevent
the Superintendent from allowing Rogers/Cable Inc. to revoke the merger of the
Premier Plan into the consolidated Rogers plan and to reopen the
Premier Plan to new employees of Cable Inc.” precluded any disposition of
the cross-appeal favourable to the Buschau litigants.
[36]
I
think further to Genpharm Inc v The Minister of Health et al, [2003] 1
FC 402 (FCA) at para 8, referring to Blueberry River Indian Band v
Canada (Department of Indian Affairs and Northern Development), [2001] 4 FC
452 (FCA) at para 38, that I can look at reasons of the Court to determine
the intent of a judgment, which here did not specifically mention the
cross-appeal. Paragraph 15 of the Memorandum of Fact and Law of the Attorney
General of Canada addressed the relief sought by the cross-appeal. The Buschau
litigants filed a Memorandum of Fact and Law addressing both RCI’s appeal and
their cross-appeal. I find it difficult to believe that the Court somehow
overlooked its paragraphs 109-111 (comprising a separate section under the
subheading “Cross-Appeal – The Respondents Seek an Order for Termination”)
asserting that this Court should “direct the Superintendent to do the
right thing”; this “case has now become a ‘theatre of the absurd’’; there is no
guarantee that the Superintendent would “do the right thing given the manner in
which she dealt with this matter in the first place”; whatever “she does, the
loser will almost certainly apply for another judicial review – which the loser
will almost certainly appeal!”; this “merry-go-round which could easily go on
for another 10 years benefits only the lawyers” and that this Court should
definitively end litigation not in the public interest and which brings the
judicial system into disrepute. RCI filed its Memorandum of Fact and Law on
December 19, 2008. After the Buschau litigants had filed their
Memorandum of Fact and Law on January 19, 2009, RCI filed, on February 17,
2009, a Memorandum of Fact and Law “In Response to Respondents’ Buschau and
Others, Cross Appeal”, a document longer than the one filed on December 19,
2008.
[37]
The
claim for fee item 2 refers to the cross-appeal. The rest of the bill of costs,
and the body of the supporting affidavit, do not refer to the cross-appeal.
However, the printing claim includes $53.02 (Invoice # VASL00230) associated
with the cross-appeal (the February 17, 2009 filing). There are three courier
invoices totalling $39, none of which refer to the cross-appeal, but which
indicate deliveries to the Registry, to counsel for the Buschau litigants and
to counsel for the Attorney General of Canada, all on February 17, 2009. My
findings in Halford v Seed Hawk Inc (2009), 69 CPR (4th) 1,
2006 FC 422 reflected an awareness of the distinction between a main action and
a counterclaim in circumstances of costs awarded in one but not the other. Rule
190 reinforces the notion in the case law that a counterclaim is an action
independent of the main action, both being housed in one court file. An appeal
and a cross-appeal are simply appeals from the same judgment, each however
seeking a different disposition: see Rule 341(1)(b). Rule 342(1) provides
that unless “the Court orders otherwise, where more than one party appeals from
an order, all appeals shall be consolidated.” This indicates to me that the
Reasons addressed both appeals, which from the perspective of RCI were integral
to supremacy in this extended struggle. I find that the maximum 7 units are
appropriate for fee item 19. I allow fee items 17, 18, 20 and 25 as presented.
[38]
My
finding in paragraph 10 of Gardner v Canada (Attorney General), 2008 FCA
67 was that in the context of what I perceived as general opposition to the
bill of costs, fee item 13 cannot be claimed for an appeal, but something could
be claimed under fee item 27 (such other services as may be allowed by the
assessment officer). I made similar allowances in Butterfield v Canada
(Attorney General), 2008 FCA 315 at para 4, and Dumont v Canada,
2009 FCA 159 at para 3. Such considerations were not argued before me. The
Buschau litigants conceded 2 units for fee item 13(a), being the mid-range
value of fee item 27, which I allow.
[39]
The
hearing duration inclusive of any breaks was five hours, seven minutes. As
above, I hold that consideration must be given for counsel getting settled
in the courtroom, time which is not part of formal case preparation. I
allow fee item 22(a) at 3 units per hour x 4.5 hours = 13.5 units. I think the
assessment process for the T-898-07 matter somewhat simplified the assessment
of costs in this matter, but there were still issues particular to the
latter matter. I allow 3 units for fee item 26.
[40]
As
for the disbursements, their individual categories and amounts appear
appropriate for the circumstances of this appeal, but consistent with my usual
concerns for the relevance or necessity of photocopies either of documents
or of case law, I reduce the claimed disbursement subtotal of $5,305.96 by $80
to $5,225.96.
The T-2006-10
Matter
Counsel Fees
Item 2: 7 units
claimed for the Respondent’s record and materials (4-7 units); Item 13(a):
2 units claimed for preparation for the judicial review hearing and a
notice of motion (2-5 units); Item 14(a): 18 units claimed for the appearance
of first counsel on a 6-hour hearing (2-3 units per hour); Item 14(b): 9 units
claimed for the appearance of second counsel where the Court directs (50% of
item 14(a)); Item 26: 2 units claimed for the assessment of costs (2-6 units)
and HST: $592.80 (12%)
Disbursements
Taxable:
photocopying @ $0.25 per page ($1,400); facsimiles @ $0.35 per page ($5.25);
Pacific Coast Registry Agent ($65); local courier ($81); Federal Express
courier ($21.21); printing ($296.60) and HST ($225.49)
Non Taxable: taxes paid on fees
($6,803.50)
[41]
Paragraphs
1-3 of the Reasons for Judgment and Judgment dated July 21, 2011 read:
[1] This application arises in the
context of a long-running dispute between Rogers Communications Inc. (the
respondent) and a group of former employees (the applicants) over an actuarial
surplus that has accumulated in a defined benefit employee pension plan. The
applicants claim that they are entitled to it. The respondent disagrees and
argues that they have the right to open the pension plan to new members and
rely upon the actual surplus to take contribution holidays with respect to
those new members.
[2] The dispute, at various stages
and in various forms, has been before the Supreme Court of British Columbia,
the British Columbia Court of Appeal, the Supreme Court of Canada, this Court
and the Federal Court of Appeal.
[3] The applicants are now
applying for judicial review of a decision, dated November 4, 2010, of a senior
supervisor in the Private Pension Plans Division of the Office of the
Superintendent of Financial Institutions Canada. The applicants had requested
that eight questions be answered regarding their dispute with the respondent.
The senior supervisor found in essence that the bulk of the arguments submitted
by the applicants had already been decided and that the Superintendent did not
have legislative authority to re-open or reconsider the matter.
[42]
Paragraphs
4-46 reviewed the history of the struggle and litigation between these parties.
Paragraph 47 outlined the issues underlying this judicial review, i.e. errors
relating to a finding that questions were already decided, to absence of
legislative authority, to entitlement to legal costs and to disclosure.
Paragraphs 48-104 disposed of the judicial review, including findings on the
doctrine of issue estoppel.
[43]
RCI
relied on its positions above. It did not file an amended bill of costs as it
was clear that it did not intend to claim the $6,803.50, referred to as an
“admitted overstatement” by the Buschau litigants, shown for non-taxable
disbursements. It conceded the position of the Buschau litigants that the
requisite direction for second counsel was not made and that, as above,
the calculation for fee item 14 must be confined to the hearing duration.
[44]
The
Buschau litigants argued as above that the maximum claimed for fee item 2 is
excessive given a hearing without witnesses, subpoenas, discoveries etc. There
is nothing to support the claim for fee item 13. As above, the claimed duration
of 6 hours for the fee item 14(a) calculation exceeds the duration of 5 hours 7
minutes reflected in the court record. As above, there was nothing to
substantiate the $1,410 claimed for photocopies, representing 5,640 pages for a
single judge hearing. Similarly, nothing should be allowed for printing. The
Buschau litigants argued that the claimed fees of $4,940 (38 units x $130 per
unit) should be reduced: items 2 (4 units); 13(a) (2 units); 14(a) (4
hours x 2 units per hour); 14(b) (0 units) and 26 (0 units) for a total of 14
units x $130 per unit = $1,820.
Assessment
[45]
There
were issues unique to this judicial review. I should not assess the bill of
costs for the T-2006-10 matter as if an extension or part of the above
matters. However, I think that certain materials underlying this judicial
review had already received close scrutiny at this stage of the protracted
struggle between the litigants. I allow 5 and 4 units for fee items 2 and 13(a)
respectively. The Buschau litigants’ materials specifically referred to
the start and end times, i.e. 9:30 am and 4:00 pm respectively, in asserting a
duration of 5 hours 7 minutes inclusive of all breaks. I think that those
times yield 6.5 hours as the actual figure. As above, I reduce this to 5.45
hours, to be apportioned at 2 units and 3 units per hour for 3 and 2.45
hours respectively. I allow fee item 26 at 2 units as claimed. I
reduce the $1,410 for photocopies to $1,250, but otherwise I find the claimed
disbursements appropriate in a party and party context and allow them as
claimed.
[46]
RCI’s
bill of costs for the T-898-07 matter, presented at $14,316.55, is assessed and
allowed at $10,881.38. RCI’s bill of costs for the A-453-08 matter, presented
at $12,756.79, is assessed and allowed at $9,521.16. RCI’s bill of costs for
the T-2006-10 matter, presented at $14,440.85, is assessed and allowed at
$5,470.71.
“Charles E. Stinson”
Vancouver, BC
March 23, 2012
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