Date: 20040302
Docket: A-643-00
Citation: 2004 FCA 87
BETWEEN:
REDDY RAJAGOPAL CHAVALI,
REDDY KRISHNAVENI CHAVALI, and
REDDY VENKATASUBBARAMI CHAVALI
Appellants
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO,
and THE CANADIAN JUDICIAL COUNCIL
AND THE FOLLOWING:
THE LAW SOCIETY OF UPPER CANADA,
LAWYERS' PROFESSIONAL INDEMNITY COMPANY, CHARLES HARNICK,
W.D. CHILCOT J, J.B CHADWICK J, DOUGLAS CUNNINGHAM J,
PETER A. CUMMING J, DOUGLAS COO J, ARCHIBALD J,
THOMAS J. LOCKWOOD, LOCKWOOD & ASSOCIATES; NELLIGAN POWER,
MARK GEDDES, DAVID CHICK, ARTHUR AULT,
GOWLING STRATHY & HENDERSON;
ANDRIDGE CAPITAL CORPORATION, GEORGE GATY;
CHATEAU ROYALE PROFESSIONAL BUILDING INC.,
LAURENTIAN BANK OF CANADA, PEAT MARWICK THORNE INC.,
ROYAL TRUST CORPORATION OF CANADA, THE TORONTO DOMINION
BANK, ALLAN O'BRIEN, JAMES MORTON, JERRY LEVITAN, KANNY NG,
MAJESTIC KEY MANAGEMENT LTD., SAMUEL TALBERT,
COLETTE TALBERT, PIAZZA, BROOKS & SIDDONS,
THE CORPORATION FOR THE CITY OF OTTAWA,
SOLMON ROTHBART GOODMAN, ANDRE BLUTEAU, MONICA CHARLES,
FELIX CHARLES and KAY CHARLES
Respondents
(Defendants)
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1] A copy of these Reasons is filed in Federal Court of Appeal file A-222-01 and in Federal Court file T-824-00 and applies there accordingly. The action (T-824-00: statement of claim containing 286 paragraphs) sought numerous declarations and orders, as well as damages of $95,000,000.00 and punitive damages of $10,000,000.00, as a function of allegations that the Defendants conspired "to destroy the Plaintiffs" (paragraph 1). The Defendants, grouped according to their interests, variously applied successfully to strike the action as against each respective Defendant and were awarded costs (as a function of several motions and orders). The Plaintiffs appealed (A-634-00). The Respondent, the Canadian Judicial Council, had given the Department of Justice separate instructions to proceed to have the action struck as against itself: it was successful with costs and court file A-222-01 addresses the appeal from that order (the hearing in court file A-302-01 occurred with A-643-00 and A-222-01, but its details are not relevant in the assessments of costs before me).
[2] The Federal Court of Appeal dismissed the appeals with costs to the Respondents appearing. I issued a timetable for written disposition of the various bills of costs on behalf of the Respondents. Some of these bills incorporate costs from both courts, a practice which should not be encouraged as these courts are distinct from one another. However, the Appellants responded to the bills of costs as presented and did not object to this approach. The Appellants raised certain preliminary matters requiring several adjustments to the timetable. For instance, at their request, I directed further to Rule 408(1) that the Appellants could cross-examine deponents on their affidavits by a given date and at a time and location convenient for each deponent, that the Appellants must engage and pay for a verbatim reporter for this purpose and, if a transcript of the cross-examination was to be filed, that a copy of that transcript had to be served on all parties. Further, I directed that the Appellants were responsible for reasonable travel expenses, if required, payable in advance. The record does not indicate that any such cross-examinations occurred. As for other preliminary relief sought by the Appellants, ie. leave for general examination of the parties and production of documentary evidence, I concluded that these assessments of costs were not matters for examinations in the nature of discovery nor did they require general productions from the files of the solicitors of record. If the sufficiency of the supporting affidavits advanced in support of the bills of costs, or the lack of affidavits, became issues on the assessment of costs, I directed that the attention of the parties be drawn to my conclusions addressing threshold of proof in Carlile infra. I refused the Appellants' preliminary request for costs. The letter setting the final dates for submissions was returned from the Appellants' address, but I note that said letter was accepted at the number ordinarily used by the Registry to send material by facsimile to the Appellants.
[3] The various bills of costs break down as follows: $1,672.00 claimed in T-824-00 by Her Majesty the Queen In Right of Canada and the Attorney General of Canada; $1,653.00 claimed in T-824-00 by the Canadian Judicial Council; $6,939.00 claimed in A-643-00 (some A-222-01 costs as well) by Her Majesty the Queen In Right of Canada, the Attorney General of Canada and the Canadian Judicial Council (hereafter "Her Majesty the Queen In Right of Canada et al."); $3,883.24 claimed in A-643-00 (some T-824-00 costs as well) by Peat Marwick Thorne Inc.; $6,103.60 claimed in A-643-00 (some T-824-00 costs as well) by Royal Trust Corporation of Canada; $6,578.30 claimed in A-643-00 (some T-824-00 costs as well) by The Law Society of Upper Canada, Lawyers' Professional Indemnity Company, Thomas J. Lockwood, Lockwood & Associates, Nelligan Power, Mark Geddes, David Chick, Arthur Ault, Gowling, Strathy & Henderson, Allan O'Brien, James Morton, Jerry Levitan, Piazza, Brooks & Siddons, Solmon Rothbart Goodman and Andrew Bluteau (hereafter "The Law Society of Upper Canada et al."); $2,236.30 claimed in A-643-00 (some T-824-00 costs as well) by Samuel Talbert and Colette Talbert and $6,637.05 claimed in A-643-00 (some T-824-00 costs as well) by Her Majesty the Queen In Right of Ontario, Attorney General of Ontario and Charles Harnick (hereafter "Her Majesty the Queen In Right of Ontario et al.").
[4] The Respondents argued variously, either further to specific factors as a function of Rules 409 and 400(3), or further to equivalent factors, that the bills of costs represent appropriate claims in the circumstances of this litigation. In some instances, the Respondents requested costs of the assessment further to Rule 408(3).
[5] The concerns generally advanced by the Appellants varied from bill to bill and included sufficiency of proof; unnecessary duplication of work and of bills of costs and unexplained discrepancies between bills as a function of an unacceptable range of amounts claimed for the same litigation work, particularly given the adoption of the responses or replies made by other parties. The Appellants asserted particular concerns for affiants, without personal knowledge of the litigation, swearing affidavits in support of costs. Their submissions for specific items throughout the bills of costs included requests to reduce either fees or disbursements to amounts consistent with claims by other Respondents for the same or comparable services, separate billings by a single law firm for the common legal representation provided to multiple Respondents, unauthorized billings by Her Majesty the Queen In Right of Canada et al. for second counsel at hearing and billing twice for the same Memorandum of Fact and Law.
Assessment
[6] I do not think that there was unnecessary duplication of work or of bills of costs. It was the Appellants who chose to name a wide array of Respondents with diverse interests, including judges of superior courts, banks, trustees etc. Although each of the latter entities sought a similar result, ie. that the litigation be struck, the relationship, if any, of each to the Appellants was not necessarily identical thereby resulting in individuals or groups choosing to instruct their respective counsel as a function of the particular circumstances of each. There were several interlocutory events and I note that, for efficiency, a Respondent or group of Respondents sometimes adopted the submissions of other Respondents, occasionally with added submissions particular to its interest. As well, in so adopting the materials advanced by other Respondents, counsel would have had a professional obligation on behalf of the client to analyze the Appellants' materials so as to provide a professional opinion of the best response, including a reasoned consideration of whether the adopted submissions required additions. As for the Appellants' objections to affidavits not based on personal knowledge, I have considered, and accepted, the evidence herein from the perspective of Rule 81(1) and (2) (providing for affidavits in support of motions to be made on information and belief and for adverse inferences in such circumstances) and of jurisprudence such as Ethier v. Canada (RCMP Commissioner), [1993] 2 F.C. 659 (C.A.), Sierra Club of Canada v. Canada (Minister of Finance), [1998] F.C.J. No. 1763 (F.C.T.D.), Molson Cos. v. Amstel Brewery Canada Ltd. (1989), 21 F.T.R. 96 (F.C.T.D.) and Nekoosa Packing Corp. v. AMCA Int. Ltd., [1992] 1 F.C. D-47 (T.O.). An assessment of costs is interlocutory in nature, being incidental to a judgment for costs. The circumstances of two court files, A-643-00 and A-222-01, required Her Majesty the Queen In Right of Canada et al. to file separate Memoranda of Fact and Law, although these Respondents were able to file joint motion materials.
[7] I concluded at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen, [2001] F.C.J. 1376 (A.O.) that the same point in the ranges throughout the columns in the Tariff need not be used as each item for the services of counsel must be considered in its own circumstances and that some generalization is required between the available values in ranges. The maximum in available ranges is not claimed in all items presented in these bills of costs nor are all arguable items claimed: a reasonable approach generally in these circumstances. My view, often expressed further to my approach in Grace M. Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", is that discretion may be applied to sort out a reasonable result for costs. I have read through the court files. In my opinion, the self-representation by the Appellants resulted at times in increased costs for the Respondents. Some instances of misidentification of item numbers did occur. For example, item 21 specifically addresses motions made in the course of appeals to the Federal Court of Appeal leaving items 4, 5 and 6 to address all other motions in the two courts. I have no choice but to restrict the allowances to item 21 given the general opposition to costs advanced by the Appellants. However, I allow the maximum in the range in each instance for the several interlocutory events. Despite the weight of materials generated in these pieces of litigation, I was able to connect each claim for the costs of a motion throughout the bills of costs with an appropriate award of costs. The narratives in bills of costs claiming costs for contested motions in the Federal Court incorrectly specified item 4 (uncontested motion) instead of item 5, but claimed the maximum units in the range for item 5: I allowed these as item 5 claims as the motions were clearly contested. Some Respondents did not specifically ask for Rule 408(3) costs of the assessment. Given the position on costs generally taken by the Appellants, I did not exercise discretion for costs in those circumstances. As well, in a similar vein, I noted that the Federal Court of Appeal, after a long day listening to the Appellants, who represented themselves throughout, did not call upon the Respondents. While I have some sympathy for counsel and their clients in the circumstances in which they found themselves, particularly given indications in the record that the party and party results here for costs will be but an insignificant fraction of the actual costs incurred as between solicitor and own client, I do not think maximum allowances for item 22(a) (appearance of counsel) are justified and I have reduced item 22 claims accordingly. The Appellants' submissions concerning unauthorized second counsel are incorrect. In all other respects, the bills of costs are allowed as presented at the maximums, if claimed.
[8] The bill of costs of Her Majesty the Queen In Right of Canada and the Attorney General of Canada is assessed and allowed as presented at $1,672.00 in T-824-00. The bill of costs of the Canadian Judicial Council is assessed and allowed as presented at $1,653.00 in T-824-00. The revised bill of costs of Her Majesty the Queen In Right of Canada et al., presented at $6,939.00, is assessed and allowed at $6,279.00 in A-643-00 (some A-222-01 costs as well). The bill of costs of Peat Marwick Thorne Inc., presented at $3,883.24, is assessed and allowed at $3,294.74 in A-643-00 (some T-824-00 costs as well). The bill of costs of Royal Trust Corporation of Canada, presented at $6,103.60, is assessed and allowed at $4,691.20 in A-643-00 (some T-824-00 costs as well). The amended bill of costs of the Law Society of Upper Canada et al., presented at $6,578.30, is assessed and allowed at $5,165.91 in A-643-00 (some T-824-00 costs as well). The bill of costs of Samuel Talbert and Colette Talbert, presented at $2,236.30, is assessed and allowed at $2,000.90 in A-643-00 (some T-824-00 costs as well). The bill of costs of Her Majesty the Queen in Right of Ontario et al., presented at $6,637.05, is assessed and allowed at $5,221.60 in A-643-00 (some T-824-00 costs as well).
(Sgd.) "Charles E. Stinson.
Assessment Officer
Vancouver, BC
March 2, 2004
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-643-00
STYLE OF CAUSE: REDDY RAJAGOPAL CHAVALI et al. v. HER
MAJESTY THE QUEEN IN RIGHT OF CANADA et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF COUNSEL
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: March 2, 2004
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General HER MAJESTY THE QUEEN IN RIGHT OF
of Canada CANADA et al.
Nelligan Power LLP FOR THE RESPONDENTS
Ottawa, ON LAW SOCIETY OF UPPER CANADA et al.
Nelligan Power LLP FOR THE RESPONDENT
Ottawa, ON ROYAL TRUST CORPORATION OF CANADA
Burke-Robertson FOR THE RESPONDENTS W.D. CHILCOOT J.,
Ottawa, ON B. CHADWICK J., DOUGLAS CUNNINGHAM J.,
PETER A. CUMMING J., DOUGLAS COO J. AND
ARCHIBALD J.
Goldberg, Kronick & Strout FOR THE RESPONDENTS
Ottawa, ON ANDRIDGE CAPITAL CORPORATION, GEORGE GATY, CHATEAU ROYAL PROFESSIONAL BUILDING INC.
Blake Cassels & Graydon LLP FOR THE RESPONDENT
Ottawa, ON LAURENTIAN BANK OF CANADA
Hamilton Appotive Callan FOR THE RESPONDENT
Ottawa, ON PEAT MARWICK THORNE INC.
Toronto Dominion Bank FOR THE RESPONDENT
Legal Dept. TORONTO DOMINION BANK
Toronto, ON
Piazza, Brooks & Siddons FOR THE RESPONDENTS
Ottawa, ON SAMUEL TALBERT AND COLETTE TALBERT
City of Ottawa Legal Dept. FOR THE RESPONDENT
Ottawa, ON CORPORATION OF THE CITY OF OTTAWA
Blaney McMurtry FOR THE RESPONDENTS
Toronto, ON HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO et al.
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