Docket: A-368-09
Citation: 2011 FCA 278
BETWEEN:
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SAMEH BOSHRA
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Applicant
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and
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CANADIAN ASSOCIATION OF PROFESSIONAL
EMPLOYEES (CAPE)
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Respondent
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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 Public Service Labour Relations Board concerning unfair labour practice
relative to a grievance process. I issued a timetable for written disposition
of the assessment of the Respondent’s bill of costs.
I. The
Respondent’s Position
[2]
The
Respondent noted that the judicial review hearing was preceded respectively by
motions to extend time to file an affidavit, to file a supplementary affidavit
(the supplementary affidavit motion) and to amend the Applicant’s affidavit, as
well as a status review hearing, all initiated by or in response to the
Applicant’s conduct. The Applicant also brought a motion, which was dismissed
as untimely, for reconsideration of the judgment.
[3]
The
Respondent noted that although it seeks costs only for the supplementary
affidavit motion, the status review hearing and the judicial review hearing, it
was necessary for each of the other hearings, to review and respond
to often lengthy affidavits and submissions from the Applicant. The Court
concluded that the Applicant’s supplementary affidavit was irrelevant and
dismissed the supplementary affidavit motion with costs.
[4]
The
Respondent argued further to Rules 409 and 400(3)(a) (result), (b)
(amounts claimed and recovered), (c) (importance and complexity), (g)
(amount of work, (i) (conduct tending to unnecessarily lengthen a
proceeding’s duration) and (k) (improper, vexatious or unnecessary conduct),
in support of the middle to maximum range counsel fees claimed, that it was
successful on both the supplementary affidavit motion hearing and on the
judicial review hearing; that although the Court permitted this matter to
proceed after the status review hearing, the hearing was exclusively
attributable to the Applicant’s conduct; that the Applicant repeatedly missed
requisite filing deadlines and unnecessarily lengthened the proceedings with
the interlocutory applications noted above and also by informal attempts to
adduce new evidence; that the Applicant’s amendment of his affidavit late in
the proceeding unnecessarily complicated the case; that the length of the
Court’s decision indicates a moderately complex proceeding, in part because of
both the lack of focus and the circumvention of the Rules through repeated
attempts to introduce new evidence in the Applicant’s Memorandum of Fact
and Law and that the claimed Column III costs are only a fraction of the
actual costs incurred in defending this proceeding.
[5]
The
Respondent argued further to Caricline Ventures Ltd v ZZTY Holdings Ltd et
al, 2002 FCT 1134 (AO) at para 21 and Starlight v Canada, [2001] FCJ
No 1376 (AO) at para 7 that the same point in the ranges throughout need
not be used as each counsel fee item is discrete and must be considered in its
own circumstances. As well, broad distinctions may be required between upper
versus lower allowances from available ranges.
[6]
The
Respondent discounted the Applicant’s position, predicated on Maxim’s Bakery
Ltd v Maxim’s Limited, [2000] FCJ No 2138 (AO) [Maxim’s], that
the Status Review Motion should be listed under fee item 27 instead of fee
item 5 by arguing that Maxim’s addressed only a Response to Notice
of Status Review and not the entire costs of a contested Status Review Hearing.
Although Maxim’s approved the former costs under fee item 27, the Tariff
does not expressly require that. Here, the Respondent tried to avoid this
hearing and consented to the Applicant’s late filing of the Requisition for Hearing,
further to which the Applicant did not act in a timely manner to preclude said
hearing. Therefore, fee item 5 should be allowed in my discretion.
[7]
The
Respondent argued further to Canada (Minister of
Citizenship and Immigration) v Zundel, 2005 FC 997 (AO) [Zundel]
at paras 4, 5 and 7, that there is discretion to allow fee item 25
(services after judgment) for interlocutory matters regardless of any final
judgment on the substantive issues of the litigation. If fee item 25 was
limited to only services after a final disposition, it would have been listed
under the Tariff B subheading “E. Trial or Hearing” rather than “G. Miscellaneous.”
The Applicant’s unwillingness to drop matters associated with the supplementary
affidavit motion required the Respondent to perform services related to said
motion well after its disposition.
[8]
The
Respondent discounted the Applicant’s position on fee item 14(a)
(appearance of lead counsel), i.e. the recorded hearing duration was only
3 hours 5 minutes, by arguing that the claimed 4 hours account for all
time in the courtroom before and after the matter was called.
The Respondent argued that, although the Court did not explicitly address
fee item 14(b) (appearance of second counsel), the Court’s direction for
costs implicitly authorized said fee given that it was made further to the
presence of second counsel who had led some of the Respondent’s oral argument
at the judicial review hearing.
[9]
The
Respondent argued further to Zundel v Canada, 2005 FCA 260 (AO) at para
12 and Abbott v Canada, 2007 FC 1338 at para 19 that the cost of
photocopies is allowable if essential to the conduct of the proceeding and
reasonable in the circumstances and therefore it is irrelevant whether the
Applicant’s photocopy costs were less or his submissions shorter than those of
the Respondent. That a litigant cannot afford or does not choose to do
something does not mean that it was unreasonable for an opposing litigant to
claim the costs associated with doing it. The evidence supports the reasonableness
of the copies of the numerous documents required, such as the Respondent’s
Record (218 pages), Book of Authorities (containing only 15 cases)
Affidavit of Jean Ouellette (178 pages), the Pleadings Brief and the many
documents associated with motions and hearings.
[10]
The
Respondent discounted the Applicant’s assertion concerning the former
contributing to the latter’s financial hardship by noting that it is
unsubstantiated, given that the pertinent proceeding has not yet been
adjudicated. The Respondent argued further to Hiebert v Canada, 2006 FC
1215 (AO) at para 6 that financial hardship is irrelevant in an assessment of
costs, and further to Scheuneman v Canada, 2006 FC 1012 (AO) at para 5
that self-represented litigants are not immune from the costs consequences of
their actions and that such costs may be assessed against them as if they were
represented by counsel.
II. The
Applicant’s Position
[11]
The
Applicant asserted that maximum Column III costs cannot be allowed as litigants
are limited to mid-range costs unless the Court directs otherwise. The
Respondent must be limited to only one fee item 25 (services after judgment)
claim, i.e. for the judicial review hearing, but not the various motions.
[12]
The
Applicant argued further to para 6 of Maxim’s that the reply to Status
Review Motion cannot be claimed under fee item 5 (preparation and filing of a
contested motion) and instead must be claimed under fee item 27 (such other
services as the assessment officer may allow). The latter’s available range (1
– 3 units) is less than the former’s range (3 – 7 units).
[13]
The
Applicant argued that as the hearing duration was entered in the court record as
3 hours 5 minutes, the Respondent’s claim of 4 hours for fee item 14(a)
must be reduced to the closest hour, i.e. 3 hours. Further to Merck & Co
Inc v Apotex Inc, 2007 FC 312 (AO) at paras 28-29, the Respondent cannot
claim fee item 14(b) (second counsel) in the absence of an enabling
direction by the Court.
[14]
The
Applicant argued further to Murphy v Canada (Minister of
National Revenue), 2002 FCA 160 (AO) at para. 4, that the
claimed photocopy costs ($1,453.65) appear excessive. In the absence of
evidence, they should be limited to the number of copies required to satisfy
the requirements of the Rules. For example, the Applicant’s photocopy costs
were less than $700.
[15]
The
Applicant, by eliminating certain interlocutory costs and restricting other
sections of the bill of costs to mid-range fees, calculated $3,849.10
inclusive of taxes (using, however, an unexplained formula of two-thirds
of the GST and one-third of the HST) for counsel fees, to which $700
(disbursements) were added for a suggested total of $4,549.10. This is an
alternative proposal to the Applicant’s general position advanced at the
judicial review hearing that the Respondent contributed to the deteriorating
employer-employee relationship, ultimately leading to the Applicant’s
termination. Other acts by the Respondent associated with the Applicant’s
circumstances also contributed overall to the latter’s significant financial
prejudice and to the loss of his livelihood. That combined with the
excessive costs claimed by the Respondent directly leave the Applicant unable
to pay costs. Accordingly, the result of this assessment should be for nil
costs.
III. Assessment
[16]
I
am not the “Court” as that term is used in the Rules and therefore I do not
have the jurisdiction to dispense with costs as urged by the Applicant: see
para 13 of Madell v Canada, [2011] FCJ No 432, 2011 FCA 105 (AO) [Madell].
Paragraphs 15 and 16 of Madell set out my general approach for
assessments of costs and for counsel fee items respectively. The Respondent’s
submission, i.e. financial hardship is not a factor in an assessment of costs,
is correct. With respect and with regard to paragraph 69 of Pfizer Canada
Inc v Canada (Minister of Health), 2008 FC 11, [2008] FCJ No 3 [Pfizer],
Rule 407 directing that costs be assessed per Column III unless the Court
orders otherwise prescribes the full range of Column III as the default value
for party and party costs, as opposed to the mid-range limitation indicated by Pfizer.
[17]
Paragraphs
23-24 of Shields Fuels Inc v More Marine Ltd, [2010] FCJ No 731, 2010 FC
228 (AO) indicate my view on fee item 27 parameters. In paragraph 8 of International
Taekwon-Do Federation v. Choi, [2008] FCJ No 402, 2008 FC 1103 (AO) [International
Taekwon-Do], I allowed fee item 27 for status review work. All of this
may be moot given my reading of the court file and the assessment materials.
Paragraph 5 of the affidavit of Amy Quinn sworn April 28, 2011 (the Quinn
affidavit) asserts that the Respondent claims for the costs associated with two
interlocutory orders, i.e. March 30, 2010 (although the exhibited order is
actually dated March 10, 2010) dismissing with costs the Applicant’s motion for
leave to file a supplementary affidavit, and June 28, 2010 allowing in
part the Applicant’s motion to amend his affidavit with costs in the cause. The
Court issued a Notice of Status Review on August 25, 2010. Both sides responded
with written submissions after which the Court issued an order dated October
14, 2010, silent on costs, permitting the matter to proceed. Strictly speaking,
said order was not pursuant to a motion, but if it had been, my decision
(paras 34-35) in Cockerill v Fort McMurray First Nation #468, [2010]
FCJ No 1246, 2010 FC 1002 (AO) [Cockerill], would preclude any
assessed costs. Paragraph 28 of Cockerill indicates that case
management costs might more properly be addressed under fee items 10 and 11 as
opposed to fee items 5 and 6. I indicated in paragraph 3 of Martselos v
Poitras, [2009] FCJ No 1205, 2009 FC 957 (AO), that costs are assessable
for an order silent on costs and associated with fee items 10 (and 11). I
addressed in paragraph 5 of International Taekwon-Do fundamental
differences between interlocutory motions and pre-hearing conferences.
[18]
The
circumstances here are not those addressed by me in Sander Holdings Ltd v Canada (Minister of
Agriculture), [2009] FCJ No. 720, 2009 FCA 199 (AO) [Sander],
except that I view the Applicant’s position as akin to the general
opposition to costs in Sander unaccompanied in some respects as
there by relevant analysis which could have assisted me identifying issues and
making a decision. Essentially, the bill of costs and supporting materials
here correctly associate the supplementary affidavit motion with a fee
item 5 claim for reply materials. I have read the materials that were
before the Court and the brief reasons issued by the Court on March 10, 2010.
This interlocutory matter was straightforward: I reduce the claimed maximum of
7 units for fee item 5 to 4 units from the available range of 3 – 7 units.
[19]
The
Quinn affidavit correctly asserts a claim for costs associated with the June
28, 2010 order, an event which had nothing to do with the status review notice,
but for which fee item 5 could be claimed. The bill of costs associates
the term ‘status review’ with the term ‘motion’. There appeared to be no
such motion and no associated order for costs, but the bill of costs claims
a fee item 5. The Respondent is clearly entitled to a fee item 5, although
for a mislabelled event (June 28, 2010). Given the state of the materials
before me, and that the motion to amend was straightforward, I reduce the
mid-range claim of 5 units for fee item 5 to the minimum 3 units.
[20]
In
Specialized Bicycle Components, Inc v Groupe Procycle, Inc, [2007] 4 FCR
694 (AO), I addressed parameters of practice in the context of costs.
In practice, fee items such as 1 (instituting document); 2 (defences); 10
(preparation for pre-trial conference); 13 (preparation for trial); 14
(appearance at trial) etc. became payable and are assessed further to a
judgment on the substantive issues between the parties and not further to an
interlocutory judgment. I considered in paragraph 34 of Aird v Country Park Village Properties
(Mainland) Inc, [2005] FCJ No. 1426, 2005 FC 1170 (AO), the notion of the
subheadings in Tariff B relative to the construction of counsel fees items in the
context of Column III as a whole. In paragraph 19 of Peerless Ltd v Aspen
Custom Trailers Inc, [2010] FCJ No 842, 2010 FC 618 (A), I allowed fee item
25 further to discontinuance of the substantive proceeding on the basis
that counsel would have had to brief the client on its implications, similar to
the briefing of a client on the implications of a judgment further to a trial.
My analysis in Williamson v Canada (Attorney General), [2005] FCJ
No 1013, 2005 FCA 219 (AO), does not assist the Respondent’s position, i.e.
that fee item 25 is assessable further to an interlocutory judgment, a position
which I think is arguable. Indeed, in situations in which an interlocutory
judgment makes costs payable forthwith before final judgment, fee item 26,
falling under the same subheading – Miscellaneous – as fee item 25 are
routinely allowed for the assessment of those interlocutory costs. Zundel
did not analyze fee item 25 in the context of Tariff B as a whole.
Generally, the practice has been to restrict fee item 25 to final as opposed to
interlocutory judgments. I disallow the fee item 25 claims associated with the
two motions above, but allow it as claimed for the substantive proceeding.
[21]
Paragraph
6 of Armstrong v Canada (Attorney General), [2010] FCJ
No 1487, 2010 FC 1189 (AO) outlines generally my approach in resolving fee item
13, 14 and 15 issues. I reduce fee item 13 from the claimed maximum 5 units to
4 units. This matter had some complexity. I allow the claimed maximum 3 units
per hour for fee item 14(a). I find that a duration of 3.5 hours should be used
for the fee item 14(a) calculation. The Applicant, in arguing for a reduction
to 5 units, correctly noted that fee item 15 (written argument) should have
been fee item 2 (Respondent’s Record): see para. 38 of Cockerill. I
allow 5 units under fee item 2. Paragraph 6 of Marshall v Canada, [2006] FCJ
No 1282, 2006 FC 1017 (AO) indicates that I do not have the jurisdiction to
allow fee item 14(b) (second counsel) in the absence as here of a direction
from the Court. I disallow the claimed 6 units.
[22]
The
Applicant conceded the mid-range claim of 4 units for fee item 26 (assessment
of costs), which I find a fair result in the circumstances.
[23]
Although
the Applicant’s submissions specifically discussed only photocopies, his
suggested reduced total of $700 inclusive of taxes for all disbursements
addressed all categories claimed, i.e. photocopies ($1,453.65); facsimiles
($12.50); process service ($60); computer research ($286.01); couriers ($62.08)
and postage ($9.32) totalling $1,994.27 inclusive of taxes. These
disbursements as presented for assessment between litigants reflect issues of
proof and relevance akin to my analyses in paragraphs 44 and 46 of Cockerill
and 18 of Madell, including a typical law office computer program of
disbursement listings by category affording little, if any, information on
purpose and relevance. I find that $1,550 inclusive of taxes is an adequate
allowance in the circumstances of this litigation.
[24]
As
sometimes happens, the bill of costs and supporting materials did not provide
detail of the specific dates of respective counsel fee services. Although
I concede that supervising counsel might have done work within the meaning of
fee item 13 prior to June 30, 2010, I have used fee item 13 as the starting
point for HST (post-July 1, 2010). That is, I calculated GST (pre-June 30,
2010) for fee items 2 and 5 and HST for the remaining fee items.
[25]
The
Respondent’s bill of costs, presented at $9,015.57, is assessed and allowed at
$6,052.55.
“Charles
E. Stinson”
Vancouver, British Columbia
October 7, 2011
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