Date: 20081204
Docket: A-421-06
Citation: 2008 FCA 385
Vancouver, British Columbia, December
4, 2008
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
AIDAN
BUTTERFIELD
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, pursuant
to Rule 414 of the Federal Courts Rules, SOR/98-106, seeks a review of
the award of costs made by an Assessment Officer of this Court (Butterfield
v. Attorney General of Canada, 2008 FCA 315 – referred to as the Assessment
of Costs). For the reasons that follow, I conclude that there is no reviewable
error and that the decision should stand.
I. Background
[2]
The
court proceedings that gave rise to the Assessment of Costs consisted of three
separately-filed but related judicial review applications, filed in 2004 and
2005, of a Transportation Appeal Tribunal of Canada hearing and decision to
suspend the Applicant’s pilot licence.
[3]
By
an order dated May 25, 2005, the matters were consolidated for the purpose of
hearing. Various procedural motions were brought by the Applicant or, where
brought by the Respondent, were unnecessarily opposed.
[4]
Justice
Heneghan dismissed the judicial review on July 18, 2006, awarding costs to the
Respondent “to be assessed on the basis of Column III, Tariff B, one counsel
fee”.
[5]
The
Applicant appealed and the appeal was dismissed on September 17, 2007, with
costs to the Respondent.
II. Assessment of Costs
[6]
On
August 22, 2006, the Respondent submitted a claim for $6,512.84 ($4,197.60 for
counsel fees and $2,315.24 for disbursements) in respect of the matters at
trial. On November 6, 2007, the Respondent submitted a claim for $3,476.57 ($2,416.80
for legal fees and $1,059.77 for disbursements) in respect of the appeal. The
Applicant made extensive submissions.
[7]
The
Respondent’s claimed amounts were assessed by the Assessment Officer on October 21,
2008. The Assessment Officer:
- Reduced the
Respondent’s bill of costs for the lower court matters from $6,512.84 to
$5,111.00;
- Reduced the
Respondent’s bill of costs for the appeal matter from $3,476.57 to $2,305.00;
- Awarded units which
fell within the range of units under Column III, Tariff B; and
- Reduced the
disbursement amounts claimed by the Respondent due to lack of proof with
respect to some of the claimed disbursements.
III. Analysis
[8]
The jurisprudence
is well-settled that the Court should only intervene in the decision of an
assessment officer where: (a) there has been an error in principle; or, (b) the
amount awarded is so unreasonable so as to suggest an error in principle (see,
for example, Merck & Co. v. Apotex Inc., 2002 FCT 1037, 224 F.T.R.
278 at para.6; Bellemare v. Canada (Attorney General), 2004 FCA 231, 327
N.R. 179 at para. 3).
[9]
Although
it is not entirely clear from his submissions, it appears that the Applicant is
asserting that the Assessment Officer made an error in principle by awarding
costs without requiring the Respondent to provide evidence of the expenses
incurred – both as to the counsel fees and the disbursements. Only then, he
submits, can the principle of “indemnification” be respected.
[10]
As I
understand his argument, the Applicant is, in effect, questioning the award of
costs set out in the decisions of the application judge and the Court of
Appeal. The Applicant relies on the decision of the British Columbia Court of
Appeal of Gyles v. British Columbia (Superintendent of Motor Vehicles),
2004 BCCA 541, as authority for the proposition that costs are not warranted
where there is a challenge to the decision of a government agency. Whether that
case is one that should be followed in the Federal Court may be arguable.
However, what is obvious is that the case has no applicability to the decision
of the Assessment Officer. The time to address the award – as opposed to the
amount – of costs is at the time of the judicial review or the appeal, as
appropriate (and as was done in Gyles, above). Having failed to do so,
the Applicant cannot now raise his objections to the award of costs. Once costs
were awarded, the Assessment Officer was obliged to assess the amount of those
costs; in this case, he had no choice but to apply column III of Tariff B of
the Federal Courts Rules.
[11]
Moving
beyond the award of costs to the assessment itself, the Applicant’s issue then
appears to be whether the Assessment Officer required evidence beyond the two
bills of costs and supporting affidavit submitted by the Respondent. In his
written submissions, the Applicant asserted that the Respondent “adduced no
evidence of indemnification or of reasonableness, necessity or relevance”. As
explained by the Applicant in oral argument, the argument seems to be that the
Assessment Officer required some evidence that the Attorney General, who was
representing the Minister of Transport, actually invoiced his client, the Minister
of Transport, for any fees or disbursements. The Applicant submits that,
without such evidence, the Assessment Officer had no basis upon which to
conclude that any counsel fees or disbursements were incurred.
[12]
The
same argument was made to and rejected by Justice von Finkenstein in Trevor
Nicholas Construction Co. v. Canada (Minister for Public Works), 2006 FC 42. Justice
von Finkenstein addressed the argument, at paragraphs 6 to 7, as follows:
There
are several things wrong with this argument. First Rule 407 of the Federal
Courts Rules provides that, unless otherwise ordered, costs shall be
awarded in accordance with column III of the table to Tariff B. Secondly, Rule
400(2) provides that costs may be awarded [to or] against the Crown. Third
there is no evidence that the Crown will profit from an award of $110 per unit.
Finally, s. 28(2) of the Crown Liability and Proceedings Act provides:
28(2)
Costs awarded to the Crown shall not be disallowed or reduced on taxation by
reason only that the solicitor or counsel who earned the costs, or in respect
of whose services the cost or charge, was a salaried officer of the Crown
performing those services in the discharge of the officers duties and was
remunerated therefore by a salary, or for that or any other reason was not
entitled to recover any costs from the Crown in respect of services so
rendered."
.
. . Clearly awards can be made to the Crown on the basis of column III of the
table to Tariff B. There is no requirement for the Defendant to disclose the
fee it pays to its solicitors in order to demonstrate that the award does not
exceed compensation. [Emphasis added.]
[13]
I
concur with Justice von Finkenstein’s reasoning.
[14]
The
Applicant argues that the decision in Trevor Nicholas, above, is
distinguishable because that case involved an action and not a judicial review.
In my view, there is no difference in the application of the principles stated
by Justice von Finkenstein. Whether the costs are being assessed in respect of
an action, a judicial review, a motion or otherwise is irrelevant. In all cases
where the Court has directed that costs be awarded in accordance with Tariff B,
there is no requirement that the Attorney General demonstrate that he invoiced
and was or was not paid by the agency or department client for his legal
services.
[15]
Accordingly,
I conclude that there was no error in principle. Further, I am also satisfied
that the amount awarded is not so unreasonable so as to suggest an error in
principle. As reflected in the reasons of the Assessment Officer in the
Assessment of Costs, the Assessment Officer carefully and properly considered
the reasonableness of the number of units for each of the items in the Bills of
Costs, reducing where he felt it appropriate to do so. A similarly detailed
assessment of disbursements was carried out.
[16]
In
conclusion, there is no reviewable error and the motion for review of the
Assessment of Costs will be dismissed. In my discretion, I award costs to the
Respondent for this review, fixed in the amount of $400.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
motion for review of the Assessment of Costs is dismissed; and
2. Costs,
fixed in the amount of $400, are awarded to the Respondent.
“Judith
A. Snider”
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