[1] The Appellant's application for judicial review in the Federal Court is outstanding and seeks relief further to a refusal to designate donated property pursuant to the Cultural Property Export and Import Act, R.S.C. 1985, c. C-51, s. 32(2). Such a designation might have led to favourable tax consequences. In the course of said judicial review, the Federal Court made an interlocutory ruling that deponents of affidavits in support of the Respondent need not answer certain questions in cross-examination, as a function of solicitor-client privilege. The Appellant's appeal in this court file of said decision was dismissed with costs. I issued a timetable for written disposition of the Respondent's bill of costs.
The Appellant's Position
[2] The Appellant argued further to a number of authorities that, in the absence of special or extraordinary circumstances, costs awarded for interlocutory proceedings, such as here, cannot be assessed until the conclusion of the action. The subject of this appeal, ie. a Federal Court order addressing certain communications and materials within the possession of the tribunal, was clearly an interlocutory matter in the course of the judicial review and it follows that the issue here before the Federal Court of Appeal was interlocutory in the context of the hearing of said judicial review, currently set for July 6, 2005, in the Federal Court. It is premature to assess these interlocutory appeal costs.
The Respondent's Position
[3] The Respondent conceded that interlocutory costs are not generally payable until the conclusion of the main proceeding, but argued that an appeal in the Federal Court of Appeal is a proceeding on its own, separate and apart from the judicial review proceeding in the Federal Court. Further, although the judicial review remains outstanding, the final judgment rendered by the Federal Court of Appeal means that this appeal proceeding is complete and therefore its costs are immediately assessable. The Respondent argued that the Appellant's authorities are not relevant because they address interlocutory proceedings within a trial court action, unlike the circumstances here of costs awarded by the final judgment of an appeal court addressing the appeal from an interlocutory proceeding of the trial court. The judicial review in the Federal Court and this appeal in the Federal Court of Appeal represent distinct proceedings respectively in two different courts. The judge hearing the judicial review has no jurisdiction regarding the award of costs in the Federal Court of Appeal.
Assessment
[4] Jowitt's Dictionary of English Law, Second Edition (London: Sweet & Maxwell Limited, 1977) defines interlocutory judgment (at page 1026) as "one which does not terminate the action, because it is not complete and definite..." and defines interlocutory proceedings (at page 999) as "incidental to the principal object of the action, namely, the judgment...." Although those definitions are in the context of an action, it might be said in the broadest sense of the litigation between the present parties that, at the instant of the judgment by the Federal Court of Appeal, the substantive issues of the judicial review in the Federal Court remained outstanding and therefore the event of said appeal court judgment, again in the broadest sense, is interlocutory, being incidental to and not determinative of the object of the judicial review. It might then follow that assessment of the appeal court's award of costs is constrained by the Appellant's authorities.
[5] The Appellant's authorities stand for the very sensible proposition, with which the Respondent as I see it takes no issue here other than relevance, that a single assessment of costs should occur in a given proceeding, to include any interlocutory awards of costs. However, I doubt whether the event of final judgment in the Federal Court of Appeal disposing of an appeal from an interlocutory judgment in the Federal Court can be said to fall within the constraints of the Appellant's authorities. Halsbury's Laws of England, 4th ed. reissue, vol. 37 (London: Butterworths, 2001) at 485, para. 1501 define an appeal as "an application to a superior court or tribunal to reverse, vary or set aside the judgment, order, determination, decision or award of an inferior court or tribunal in the hierarchy of courts or tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected" and further notes that a right of appeal "is not a mere matter of practice or procedure." The Court in Ecstall Mining Corp. v. Tagish Resources Ltd. (1993) 77 B.C.L.R. (2d) (B.C.C.A.) 156 at 164, admittedly in a different statutory setting, concluded that appeal "in its ordinary legal sense means a reconsideration by a higher court of a decision of a lower court" and "is not apt to describe a process which takes place within the same court." Said Court gave as examples of this latter process the effect of discharge or vary. While Federal Courts Rule 397 factors of reconsideration were not raised here, I find the case summaries for said rule in the David Sgayias et al., Federal Court Practice (Toronto: Thomson Carswell, 2005) at 810-13 instructive, with particular regard to Abbott Laboratories v. Canada (Min. Of Health), Benipal v. Canada (Min. of Citizenship and Immigration) and Kun Shoulder Rest v. Joseph Kun Violin & Bow Maker, Inc.
[6] All of these latter authorities I take as reinforcing the notion of an appeal court in its hierarchy of courts, ie. the Federal Court of Appeal, as something beyond, separate or outside the bounds of any proceeding, including an interlocutory proceeding, of a trial court in the same hierarchy of courts, ie. the Federal Court. The Federal Courts Act, s. 2(1) defines final judgment as "any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding." The Federal Courts Act, s. 52 defines the powers of the Federal Court of Appeal. In my view of the notion of "substantive right" in the hierarchy of courts, an interlocutory award of costs in the Federal Court is caught up in the constraints of the Appellant's authorities, being clearly a proceeding within and incidental to the main proceeding, ie. here the judicial review, but an award of costs in the Federal Court of Appeal, further to disposition of an appeal from an interlocutory decision, is not so caught, being clearly a proceeding not within the main proceeding, notwithstanding that its effect in the broadest sense could be said to be incidental to the outcome of the judicial review. That is, I do not think that the substantive event of an appeal court proceeding is akin to the interlocutory event of a trial court proceeding nor do I think that the former event can be deemed as occurring within the trial court proceeding, so as to be caught up in the constraints of the Appellant's authorities. I find that the proposition advanced by the Appellant's authorities is current, but irrelevant in the circumstances here. The Respondent may proceed with the assessment of costs.
[7] I surmise that the Appellant, although invited to do so in the timetable, did not advance reply submissions on individual amounts in the bill of costs in anticipation of success on the preliminary issue of the Respondent's right to proceed at this time. I considered, but rejected, the notion of extending time for the Appellant to perfect submissions. The Respondent's materials established appropriate counsel fees claimed at minimum values in the available ranges and indeed omitted what would likely have been viable claims for things such as items 25 (services after judgment) and 26 (assessment of costs). The disbursement claim of $373.08 is modest in the circumstances here. The Respondent's bill of costs is assessed and allowed as presented at $1,253.08.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
June 8, 2005
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-322-04
STYLE OF CAUSE: JOAN A. WILLIAMSON
- and -
THE ATTORNEY GENERAL OF CANADA
representing the Minister designated under the Cultural Property Export and Import Act
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: June 8, 2005
SOLICITORS OF RECORD:
Parlee McLaws LLP FOR APPELLANT
Edmonton, AB
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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