Date: 20021007
Docket: A-701-98
Neutral citation: 2002 FCA 367
BETWEEN:
BERTHA L'HIRONDELLE, suing on her own behalf
and on behalf of all other members of the Sawridge Band,
WAYNE ROAN, suing on his own behalf and on behalf of all
other members of the Ermineskin Band, and
BRUCE STARLIGHT suing on his own behalf and on behalf
of all other members of the Sarcee Band
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA) and
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
Docket: A-793-00
BETWEEN:
BRUCE STARLIGHT, suing on his own behalf
and on behalf of all other members of the Sarcee Band
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA),
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
Docket: A-794-00
BETWEEN:
BERTHA L'HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA,
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1] The Court dismissed the appeal in each Court file, but with one set of costs payable to each Respondent and Intervener. Upon subsequent application, the Court ordered that costs be assessed at the maximum value under column IV of Tariff B. I issued a timetable for written disposition of the bills of costs filed on behalf of the Intervener, the Non Status Indian Association of Alberta and the Respondent, Her Majesty the Queen. The Respondent's written submissions relied upon the Federal Court Rules, 1998 and the Court's Order made further to the Intervener's motion for increased costs.
The Appellants' Position
[2] The Appellants argued that the Judgment, in prescribing one set of costs, precludes the claim in the Crown's bill of costs for 9 units in Court file A-701-98 under item 19 (Memorandum of Fact and Law) and another 9 units total in Court files A-793-00 and A-794-00, also under item 19. The latter 9 units should be removed. The Appellants relied on Legere v. Canada, [1999] F.C.J. No. 1178 (A.O.), and argued that the claims in the Crown's bill of costs under item 21(a) for preparation for motions addressing case management and to settle contents of Appeal Books should not be allowed because the resultant Orders were silent as to costs. Alternatively, the Crown's bill of costs should be reduced by 4 units to account for two sets of costs sought for the same motion under item 21(a) contrary to the terms of the Judgment prescribing one set of costs. The Appellants argued that the maximum 7 units claimed under item 26 for this simple and straightforward assessment are excessive and that I should therefore exercise discretion under Rule 408(3) to reduce them.
[3] The Appellants reiterated their argument above concerning 9 units total claimed in the Intervener's bill of costs under item 19 (Memorandum of Fact and Law) for Court files A-793-00 and A-794-00 additional to the 9 units already claimed under item 19 for Court file A-701-98. The Appellants reiterated their argument above concerning orders silent as to costs thereby precluding claims under item 21(a) in the Intervener's bill of costs for preparation of the motions for case management and settling contents of Appeal Books. The Appellants argued that nothing should be allowed for the third claim in the Intervener's bill of costs under item 21(a) relative to preparation of the motion for increased costs of the litigation because the resultant Order was silent as to costs. Alternatively, the Appellants argued that the Intervener's bill of costs should be reduced by 4 units to address duplication of costs, i.e. claiming 4, 1 and 7 units respectively under items 21(a), 25 and 26 for the motion to increase costs, for unspecified post-judgment activity and for the assessment of costs. The Appellants reiterated their argument above for an exercise of discretion under Rule 408(3) to refuse the maximum 7 units claimed under item 26 in the Intervener's bill of costs. The Appellants argued that the photocopy rates of $0.40 and $0.25 per page respectively used in the Crown's bill of costs and in the Intervener's bill of costs are excessive and should each be reduced to $0.10 per page.
The Intervener's Position
[4] The Intervener noted that, although the Court eventually ordered these appeals to be heard together, at which time they were dismissed with only one set of costs, the Trial Division Orders which were the subject of the appeals were distinct from one another in their scope and nature resulting in different and separate appeals. The Intervener noted that the Appellants did not move the 1998 appeal forward and, in the interim, the Trial Division case management Judge issued an Order in 2000, the subject of the 2000 appeals, addressing a much broader question than the 1998 Order, the subject of the 1998 appeal. The Intervener argued that the difference between the 2000 appeals and the 1998 appeal required the Appellants to prepare Memoranda of Fact and Law necessarily distinct from one another, in turn requiring distinct and separate Memoranda of Fact and Law from the Intervener for the 2000 appeals and the 1998 appeal respectively. The Intervener argued that the Court's award of "one set of costs" simply limited recovery of counsel fees for one appeal hearing relative to both A-793-00 and A-794-00, which were duplicate appeals from the same Order. The Intervener asserted that, therefore, it claimed items 20 and 22 (requisition for hearing and appearance fee respectively) only once since the hearing required only a single appearance by counsel to address issues for all of the appeals. The Intervener argued that it was necessary, however, to prepare and file a Memorandum of Fact and Law on two separate occasions, each addressing different submissions, in response to two separate appeals.
[5] The Intervener argued that costs for interlocutory orders are properly costs in the cause, unless the Court orders otherwise, and therefore it can be assumed that an interlocutory order silent as to costs is authority for costs in the cause. The Intervener argued that the claims under items 21(a), 25 and 26 address services of counsel distinct from one another and therefore do not represent duplicate costs. The Intervener asserted that an assessment officer has no discretion to vary an Order directing costs at the maximum level under column IV, that being 7 units for item 26. In any event, the necessity for preparation of both a bill of costs and written representations justifies the maximum value. The Intervener argued that $0.25 per page reflects the actual and reasonable cost for photocopies and is consistent with Federal Court practice per Pardee Equipment Ltd. v. Canada, [1998] F.C.J. No. 751 (A.O.)
Assessment
[6] It is well settled that the events of interlocutory motions are distinct from the events of the substantive issues of the litigation in which they occur. Costs for such interlocutory events can be assessed only as a function of their visible award in interlocutory orders distinct from final judgments. That did not occur here relative to the motions addressing case management and settling contents of Appeal Books. The definition of assessment officer in Rule 2 and the constitution of the Court outlined in section 5 of the Federal Court Act preclude me from assuming jurisdiction under Rule 400(1) to allow items 21(a), and associated disbursements, in those circumstances. This precludes me as well from interfering with the Court's direction for maximum values under column IV. The Intervener, but not the Respondent, presented a claim under item 21(a) for the motion for increased costs. The Court, in disposing of that motion, expressed its concern with certain aspects of these proceedings and framed the order for increased costs in language arguably including those for the motion. I took that into consideration and allowed said item 21(a) in the circumstances.
[7] Each memorandum of Fact and Law may have required separate and distinct work. However, the Judgment, and my conclusions above concerning my authority to interfere with an award of costs, limit me to an allowance of only one item 19 in each bill of costs. As in the past, I allow item 25 in the Intervener's bill of costs on the basis that, at the minimum, a client is entitled to an opinion from counsel on the implications of judgment. The Appellants objected to every item in both bills of costs except item 20, for the Requisition for Hearing, and item 24, and the associated travel disbursements, in the Crown's bill of costs for its counsel to travel to the site of hearing. For the Reasons given above, I do not exercise "the discretion of the Court" as that phrase appears in item 24. Ordinarily, I do not step away from my neutral position to challenge given items in the absence of representations from a party particularly if, as here, I think that the assessing party could have claimed additional fees under other items not presented. In the circumstances, I remove the 7 units claimed under item 24. However, as in the past, I conclude that the restriction in item 24 applies only to counsel fees. Therefore, I allow the associated travel disbursements as presented.
[8] I think that sufficient effort was necessary on behalf of both the Respondent and the Intervener to warrant an allowance for each under item 26. I allow the maximum 7 units as required by the Order for increased costs. Consistent with my rationale in Carlile v. The Queen, 97 D.T.C. 5284 and Local 4004, Airline Division of Canadian Union of Public Employees v. Air Canada on March 25, 1999 in T-323-98, I continue to allow photocopies at $0.25 per page: that is the rate I apply here. It is not clear from the Intervener's bill of costs whether any of the $69.75 claimed for the Memorandum of Fact and Law in A-794-00 is attributable to a Memorandum of Fact and Law in A-793-00 and A-701-98. The Intervener is entitled to the costs of at least one such document. I allow the $69.75 as presented, as well as associated courier costs of $9.30. The total photocopying claim for three court files in the Crown's bill of costs (at $0.40 per page) is $180.00 for the Memoranda of Fact and Law. I allow $70.00 in the circumstances.
[9] The bills of costs of the Respondent, Her Majesty the Queen, and of the Intervener, the Non-Status Indian Association of Alberta, presented at $7,272.09 and $6,549.05 respectively, are assessed and allowed at $4,131.83 and $4,086.38 respectively.
(Sgd.) "Charles E. Stinson"
Assessment Officer
DATED at Vancouver, British Columbia, this 7th day of October, 2002
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-701-98
STYLE OF CAUSE: BERTHA L'HIRONDELLE et al v. HMQ et al.
DOCKET: A-793-00
STYLE OF CAUSE: BRUCE STARLIGHT v. HMQ et al.
DOCKET: A-794-00
BERTHA L'HIRONDELLE et al. v. HMQ et al.
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS REASONS: CHARLES E. STINSON
DATED: October 17, 2002
SOLICITORS OF RECORD:
Aird & Berlis for Appellants Bruce Starlight et al.
Toronto, ON
Catherine Twinn for Appellants Bertha L'Hirondelle et al.
Slave Lake, AB
Morris Rosenberg for Defendant Crown
Deputy A/G of Canada
Lang Michener for Intervener Native Council of Canada
Ottawa, ON
Burnett Duckworth & Palmer for Intervener Non-Status Indian Association of Alberta
Calgary, AB
Field Atkinson Perraton for Intervener Native Council of Canada (Alberta)
Edmonton, AB
Eberts Symes Street & Corbett for Intervener Native Women's Association of Canada
Toronto, ON
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