Date: 20110210
Docket: A-46-08
Citation: 2011 FCA
53
Coram: NOËL J.A.
TRUDEL
J.A.
MAINVILLE
J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Appellant
and
THE
RIGHT HONOURABLE JEAN CHRÉTIEN
Respondent
and
THE HONOURABLE JOHN H. GOMERY, IN HIS
QUALITY AS
EX-COMMISSIONER OF THE COMMISSION OF
INQUIRY INTO
THE SPONSORSHIP PROGRAM AND ADVERTISING
ACTIVITIES
Mis en cause
Dealt with in writing without appearance
of parties.
Order delivered
at Ottawa, Ontario, on February 10, 2011.
REASONS
FOR ORDER BY: MAINVILLE
J.A.
CONCURRED
IN BY: NOËL
J.A.
TRUDEL
J.A.
Date:
20110210
Docket:
A-46-08
Citation: 2011 FCA 53
Coram: NOËL
J.A.
TRUDEL
J.A.
MAINVILLE
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Appellant
and
THE RIGHT
HONOURABLE JEAN CHRÉTIEN
Respondent
and
THE HONOURABLE JOHN H. GOMERY, IN HIS
QUALITY AS
EX-COMMISSIONER OF THE COMMISSION OF
INQUIRY INTO
THE SPONSORSHIP PROGRAM AND ADVERTISING
ACTIVITIES
Mis en cause
REASONS FOR ORDER
MAINVILLE
J.A.
[1]
On
October 26, 2010, this Court dismissed the appeal with costs in favour of the
respondent. The respondent now submits a motion pursuant to sections 369, 400
and 403 of the Federal Courts Rules, SOR/98-106 (“Rules”) seeking that
his costs and disbursements be fixed at a lump sum of $70,000, including all
applicable taxes.
[2]
The
appellant agrees to a lump sum award as to costs, but would base this award on
Tariff B of the Rules, thus providing for a lump sum of $11,282.70 exclusive of
disbursements but including taxes.
[3]
The
principles applicable to increased cost awards have been previously canvassed
by our Court and can be summarized as follows:
a. An award of
party-and-party costs is normally determined in accordance with column III of
the table to Tariff B and does not seek to compensate a party for the legal
costs it incurred, but rather represents a contribution towards a successful
party’s legal costs.
b. However, in
its discretion, the Court may increase these costs in order to provide
appropriate party-and-party costs if circumstances warrant such an award.
c. In exercising
its discretion, the Court may consider the factors set out under section 400 of
the Rules, including notably the amounts claimed and recovered, the importance
and complexity of the issues, the amount of work involved, the conduct of a
party, and whether the public interest in having the proceeding litigated
justifies a particular award of costs.
d. The increased
costs are also to be awarded as party-and-party costs, as they do not indemnify
the successful party for its solicitor-and-client costs.
e. Solicitor-and-client
costs are only awarded in exceptional circumstances such as where a party has
shown bad faith or inappropriate, reprehensible, scandalous or outrageous
conduct; reasons of public interest may also justify solicitor-and-client
costs.
f.
An
award of costs is not an exact science and is rather a matter of discretion
based on good judgment and common sense.
(Sections 400 and 407 of the Rules, Consorzio
del Prosciutto di Parma v. Maple Leaf Meats Inc., 2002 FCA 417, [2003] 2
F.C. 451; Mugesera v. Canada (Minister of Citizenship and Immigration),
2004 FCA 157, 325 N.R. 134; CCH Canadian Ltd. v. Law Society of Upper Canada,
2004 FCA 278, 243 D.L.R. (4th) 759; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R.
405 at paragraph 86.)
[4]
The
respondent justifies his request for additional costs on the basis of the
results of the proceeding, the importance of the issues, the public interest in
having the proceeding litigated and the conduct of the appellant.
[5]
The
results of the proceeding alone are not a factor justifying increased costs.
Moreover, the conduct of the appellant in pursuing this appeal was not
reprehensible and also does not justify an increase in costs.
[6]
However,
I recognize that the importance of the issues decided in the appeal, as well as
the public interest in pursuing the appeal, justify an increase in costs. The
appeal concerned the reputation of a former Prime Minister of Canada and the
proper conduct of federal commissions of public inquiry. These were important
and complex issues of public importance. Consequently the appellant will be
awarded costs in addition to those set out in Tariff B.
[7]
As
to the quantum of costs, this is a matter of discretion based on the factors
set out above. The respondent seeks $70,000 being almost the equivalent of his
solicitor-and-client costs. There is no justification here for an award on a
solicitor-and-client basis. On the other hand, the appellant proposes to apply
Tariff B for an award of $11,282.70 exclusive of disbursements (which the
respondent estimates at $4,475.91) but including taxes. As I have already
noted, an increased award of costs beyond the amounts provided in Tariff B is
justified in this case, and I cannot therefore accept the appellant’s position
limiting costs to the tariff.
[8]
Taking
into account the time spent by the respondent’s counsel to prepare the appeal
and the importance and complexity of the issues raised, an award of $25,000 plus
all disbursements and applicable taxes appears to me appropriate in this case.
Though this amount is insufficient to compensate the respondent fully for the
legal costs incurred in this appeal, it constitutes nevertheless a significant
contribution towards these costs while remaining within acceptable standards of
party-and-party costs awards. It represents a compromise between compensating
the successful party while not unduly burdening the unsuccessful party.
[9]
I
would consequently award the respondent, for the appeal and all related
motions, including this motion, party-and-party costs of $25,000 plus
disbursements incurred and applicable taxes on these costs and the
disbursements. The assessing officer should be directed to assess costs
accordingly.
"Robert
M. Mainville"
“I
agree.
Marc Noël”
“I
agree.
Johanne Trudel”
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