Date: 20101119
Docket: A-215-09
Citation: 2010 FCA 317
Present: JOHANNE
PARENT, Assessment Officer
BETWEEN:
HARRY WAWATIE, TOBY DECOURSAY, JEANNINE
MATCHEWAN AND LOUISA PAPATIE, IN THEIR CAPACITY AS MEMBERS OF THE ELDERS
COUNCIL OF MITCHIKANIBIKOK INIK (also known as ALGONQUINS OF BARRIERE LAKE)
Appellants
and
MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT
Respondent
and
THE ELDERS OF MITCHIKANIBIKOK INIK
(ALGONQUINS OF BARRIERE LAKE) LED BY CASEY RATT
Intervener
REASONS FOR ASSESSMENT OF
COSTS
JOHANNE PARENT, Assessment
Officer
[1]
The
Appeal from the Order of the Honourable Mr. Justice Harrington was discontinued
on March 4, 2010. On May 6, 2010, the respondent Minister of Indian Affairs and
Northern Development (the respondent) filed its Bill of Costs. A timetable for
written disposition of the assessment of the respondent’s Bill of Costs was
issued initially on May 26, 2010 and re-issued for proper service on September
9, 2010. Both parties filed representations in the prescribed timeframe.
[2]
Pursuant
to Rules 402, 403 and 407 of the Federal Courts Rules and in the absence
of a Court Order or agreement between parties on the costs of this
discontinuance, costs will be assessed in accordance with Column III of Tariff
B.
[3]
The
assessable services claimed by the respondent amount to a total of $4,381.65
plus disbursements of $1,594.00. In support of its Bill of Costs, the
respondent filed the affidavit of Virginie Cantave. Paragraph 4 of this affidavit
reads:
All the fees and disbursements
provided for in the Bill of Costs (exhibit “A”) are reasonable and were
justified for the proper conduct of the file.
Two exhibits are attached to the affidavit
namely two work orders for parcel services.
[4]
It
is noted that the respondent, in its reply submissions, amended its claim for
costs and disbursements by reducing the three units claimed under Item 27 for
the Notice of Appearance to one unit. Additionally, the respondent withdrew the
counsel fees claimed for a memorandum of fact and law under Item 21, plus the
claim for PST on all legal services.
[5]
In
their submissions in response, the appellants claimed that the costs sought are
not properly justified, are excessive and should be discounted significantly.
[6]
In
consideration for the work performed in the preparation and filing of the
Notice of Appearance and in accord with the parties’ submissions, one unit will
be allowed under Item 27 (McRae v. Canada 2006
FC 801(A.O.) and Toronto Sun Wah Trading Inc. v. Canada 2009 FCA 293(A.O.).
[7]
Under
Item 19, the respondent sought the maximum number of units for the preparation
of its Memorandum of Fact and Law. The appellants argue that this is
unreasonable considering that it only consisted of 24 pages that do not deal
with very complex issues and therefore the minimum number of units should be
allowed. In reply, the respondent argues that:
The factual record was complex
and dated back to events and agreements signed between 1996 and 2006.
Furthermore, the respondent had to respond to five issues on appeal as outlined
by the appellants in their Memorandum of fact and law, some of which were
complex in nature, such as the duty to consult arising out of an asserted
Aboriginal right to self-government” (paragraph 5).
[8]
Having
read through the appellants and respondent’s Memoranda of Fact and Law, I
consider that the work performed regarding the “events and agreements”, refers
to arguments that were made before the Federal Court for which there has
already been compensation. On the other hand, I have carefully reviewed the
points in issue introduced by the respondent in light of the issues raised by
the appellants and although an undeniable amount of work was performed in the
preparation of the Memorandum of Fact and Law, I do not consider this matter
highly complex and will allow six units.
[9]
Seven units are claimed under Item 5 (Preparation and filing of a
contested motion, including materials and responses thereto) along with three
units under Item 21 (Counsel fee on a motion, including preparation, service
and written representations or memorandum of fact and law) for the respondent’s
preparation of a Motion Record in response to the Matchewan Customary Council’s
Motion to intervene. In response, the appellants argue that those costs are
excessive considering that “this is a simple compilation of information that
had previously been submitted”. The respondent, in reply, leaves the matter in
the discretion of the assessment officer.
[10]
Separate claims were made under Items 5 and 21. Given that this is
an appeal to the Federal Court of Appeal under Rule 335 of the Federal
Courts Rules, I will only consider the claim made under Item 21. However, I
note that the Order of the Honourable Mr. Justice Sexton dated December 15,
2009 dismissed said motion making no reference as to costs. The assessment
officer has no jurisdiction to order costs. As per Rule 400(1) of the Federal
Courts Rules, only the Court has the “full discretionary power over the
amount and allocation of costs and the determination of by whom they are to be
paid”. Further in Janssen-Ortho Inc. v. Novopharm Ltd., 2006 FC 1333
(FC), the Court determined that “any pre-trial Order that is silent as to costs
means that no costs have been awarded to any party”. Considering, that Justice
Sexton’s Order is silent as to costs, the claim for the Motion Record in
response is denied.
[11]
Fees
are claimed under Item 25 for services after judgment. The appellants request
that this claim be disallowed considering this matter was terminated through a
notice of discontinuance and that “Item 25 contemplates the review and the
reporting of the final Court decision to the client” (paragraph 11). In reply,
respondent’s counsel argues that the claim is justified considering that she
had to report back to the client as she was in the process of preparing for the
hearing which was to be held less than two weeks after the date of the filing
of the discontinuance. Referring to the decision in MacMillan v. Canada
2006 FCA 149 (A.O.), the respondent further argues that “a broad reading of
Rule 402 permits such a claim”. I note that there was no final decision made
in this Court file. However, considering the decision in MacMillan and the
argument raised by the respondent, I am of the opinion that the service of
reporting back to the client in this particular case justifies the allowance of
the one unit claimed.
[12]
The
maximum number of units is claimed under Item 26 for the Assessment of Costs.
In keeping with previous decisions and considering the affidavit and
submissions filed by the respondent, I allow four units.
[13]
The
fees for assessable services are allowed in the amount of $1,560 plus GST.
[14]
The
respondent seeks $1,306 in disbursements for the reproduction of two Books of
Authorities: November 12, 2009 - $280 and February 2, 2010 - $1,026. The
appellants in response submit that the respondent is responsible for the
failure of their attempt to file a Joint Book of Authorities due to the
respondent’s failure to provide the necessary input in a timely manner. Given
this unsuccessful attempt, the appellants argue that the claims should be
disallowed or alternatively discounted “by the time spent by the appellants on
the Books of authorities”. The respondent in response submits that its
responsibility for “the parties to agree to a joint book of authorities is not
supported by the evidence provided in the affidavit of Emily Whetung-MacInnes” (paragraph
9). Concerning the discount argument, the respondent states that “an adjustment
of costs by way of set-off is not available unless the applicants have been
themselves awarded costs” (paragraph 12). On this last point and for the
argument raised, I agree with counsel for the respondent, set-off is not
possible. Regarding the appellants’ argument concerning their attempt to file a
Joint Book of Authorities, I cannot find anything in the affidavit filed in
support of this argument that would justify my intervention in the
disbursements engaged by the respondent. I examined
the disbursement claimed for the reproduction of the Book of Authorities filed
on February 2, 2010 along with the supporting material on file and find the
claimed charge necessary for the conduct of this matter. The amount is reasonable
and it is allowed, as requested, at $1,026.
[15]
Considering
that costs for the Motion for leave to intervene had not been awarded to either
party, I have no authority to allow associated disbursements and I, therefore,
disallow the claim for the reproduction of the Book of Authorities ($280) filed
November 12, 2009 along with the reproduction costs of the Motion Record in
response to the appellants’ Motion for leave to intervene ($222) and the costs
for service ($5).
[16]
The
disbursements claimed for the reproduction of the Memorandum of Fact and Law
and its courier service are not contested. They are
considered necessary charges for the conduct of this matter, are reasonable
and they are, therefore, allowed.
[17]
The
Bill of Costs is allowed for a total amount of $2,725.00.
"Johanne
Parent"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-215-09
STYLE
OF CAUSE: HARRY
WAWATIE, TOBY DECOURSAY, JEANNINE
MATCHEWAN AND
LOUISA PAPATIE, IN THEIR
CAPACITY AS
MEMBERS OF THE ELDERS COUNCIL
OF
MITCHIKANIBIKOK INIK (also known as
ALGONQUINS OF
BARRIERE
LAKE)
v.
MINISTER OF INDIAN
AFFAIRS AND NORTHERN
DEVELOPMENT
v.
THE ELDERS OF
MITCHIKANIBIKOK INIK
(ALGONQUINS
OF BARRIERE LAKE) LED BY
CASEY
RATT
ASSESSMENT
OF COSTS DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF
COSTS BY: JOHANNE PARENT, Assessment Officer
DATED: November 19, 2010
WRITTEN
REPRESENTATIONS BY:
|
David C. Nahwegahbow
|
FOR
THE APPELLANTS
|
|
Virginie Cantave
Julia
Rys
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Nahwegahbow,
Corbière
Barristers & Solicitors
Rama,
Ontario
|
FOR
THE APPELLANTS
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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