Docket: 2006-3533(IT)G, 2007-2496(IT)G
2007-2611(IT)G, 2007-3038(IT)G
and 2007-3039(IT)G
BETWEEN:
STANLEY LABOW, DANNY S. TENASCHUK,
MARCANTONIO CONSTRUCTORS INC.,
GIUSEPPE MARCANTONIO
and DOMENICO FILOSO,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Applications
for costs of the motions heard on September 5, 2008
at Ottawa, Ontario
By: The Honourable
Justice E.A. Bowie
Appearances:
|
Counsel for the Appellants:
|
Shelley
Kamin
|
|
Counsel for the Respondent:
|
Luther P. Chambers, Q.C.
|
____________________________________________________________________
AMENDED ORDER
UPON applications by counsel for the parties
for costs of the motions heard in these appeals on September 5, 2008;
AND UPON reading the written submissions of
the parties, filed on September 30, 2008;
IT IS ORDERED that costs of the motions are
awarded to the Appellants, in any event of the cause, fixed in the
amount of $16,100, plus goods and services tax in the amount of $805, for a
total of $16,905, payable within 30 days of the date of this Order.
Signed at Ottawa, Canada,
this 30th day of January, 2009.
"E.A. Bowie"
Citation: 2009 TCC 43
Date: 20090130
Docket: 2006-3533(IT)G, 2007-2496(IT)G
2007-2611(IT)G, 2007-3038(IT)G
and 2007-3039(IT)G
BETWEEN:
STANLEY
LABOW, DANNY S. TENASCHUK,
MARCANTONIO CONSTRUCTORS INC.,
GIUSEPPE MARCANTONIO
and DOMENICO FILOSO,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR ORDER
Bowie
J.
[1] On September 5, 2008, I heard motions in these five
matters. In disposing of them by Orders dated September 12, (2008TCC511) I
reserved the costs of the motions to be dealt with after the parties had an
opportunity to make submissions in writing. That has now been done.
[2] The motions occupied
a full day of court time. The morning was consumed by the argument of the
respondent’s motions to amend the Replies to the Notices of Appeal, and the
remainder of the day by the arguments relating to the other relief sought by
the respondent. This included attempts by the respondent to obtain further
discovery of some of the appellants, to examine non-parties under Rule 99,
and to obtain unredacted copies of certain documents, parts of which had been
obscured to protect solicitor/client privilege.
[3] I permitted some, but
not all, of the amendments that the respondent sought to make to the Replies.
The respondent achieved only little success on the other issues. Marcantonio
Constructors Inc. was required to reattend and to answer some further questions
relating to one issue on discovery, and it was also required to produce an
unredacted copy of a document upon which it had earlier waived solicitor/client
privilege. This modest success, however, had little to do with the submissions
made by counsel for the respondent.
[4] In dealing with the
question of the costs of the motions I have the discretion conferred by
subsection (1) of Rule 147, and I am guided by the factors set out in
subsection (3) of it.
147(1) Subject to the provisions of the Act, the
Court shall have full discretionary power over payment of the costs of all
parties involved in any proceeding, the amount and allocation of those costs
and determining the persons by whom they are to be paid.
(2) Costs may be awarded to or against the
Crown.
(3) In exercising its discretionary power
pursuant to subsection (1) the Court may consider,
(a)
the result of the proceeding,
(b)
the amounts in issue,
(c) the
importance of the issues,
(d)
any offer of settlement made in writing,
(e)
the volume of work,
(f)
the complexity of the issues,
(g) the conduct of any party that
tended to shorten or to lengthen unnecessarily the duration of the proceeding,
(h) the denial or the neglect or
refusal of any party to admit anything that should have been admitted,
(i)
whether any stage in the proceedings was,
(i) improper, vexatious, or unnecessary,
or
(ii) taken through negligence, mistake or
excessive caution,
(j)
any other matter relevant to the question of costs.
(4) The Court may fix all or part of the costs
with or without reference to Schedule II, Tariff B and, further, it may award a
lump sum in lieu of or in addition to any taxed costs.
(5) Notwithstanding any other provision in
these rules, the Court has the discretionary power,
(a) to award or refuse costs in
respect of a particular issue or part of a proceeding,
(b) to award a percentage of taxed
costs or award taxed costs up to and for a particular stage of a proceeding, or
(c) to award all or part of the
costs on a solicitor and client basis.
(6) The Court may give directions to the
taxing officer and, without limiting the generality of the foregoing, the Court
in any particular proceeding may give directions,
(a) respecting increases over the
amounts specified for the items in Schedule II, Tariff B,
(b) respecting services rendered
or disbursements incurred that are not included in Schedule II, Tariff B, and
(c) to permit the taxing officer
to consider factors other than those specified in section 154 when the costs
are taxed.
(7) Any party may,
(a) within thirty days after the
party has knowledge of the judgment, or
(b) after the Court has reached a
conclusion as to the judgment to be pronounced, at the time of the return of
the motion for judgment,
whether or not the judgment included any
direction concerning costs, apply to the Court to request that directions be
given to the taxing officer respecting any matter referred to in this section
or in sections 148 to 152 or that the Court reconsider its award of costs.
It
is apparent from the use of the permissive “may” in the opening words of
subsection (3), and from paragraph (3)(j), that the factors enumerated may
not all be applicable in every case, and are not intended to be exhaustive.
[5] Counsel for the
respondent in his written submission on costs suggests that the appropriate
disposition would be to order that the costs of the motions be costs in the
cause, payable on a party and party basis. The counsel fee allowed by Tariff A
for a motion in a Class C proceeding, unless varied by a judge, is $700. He
submits, too, that three sets of costs are appropriate, having regard to the
commonality of certain issues in the five appeals. Mr. Chambers submits as well
that I ought not to award a lump sum in lieu of the tariff without having any
evidentiary basis for doing so. He bases this submission upon the final
paragraph of the Reasons for Judgment of Hugessen JA in The Queen v.
Lagiorgia:
One final comment in
closing. On an application such as this, where a party is seeking a lump sum
for costs in lieu of the amounts provided by the tariff, it would seem to me
that counsel would normally have the obligation of showing the Court what such
latter amounts might be expected to be. The production of a pro forma
bill of costs would be a proper way of doing this. In the absence of any such
material, the Court is left to determine as best it can and on its own the
amounts which could be claimed under the tariff. That is not something the
Court should have to do.
While
this obiter dictum undoubtedly constitutes sound advice, I do not
consider that it goes so far as to limit my discretion in the present case.
Counsel for the appellants has included in her submission a pro forma
solicitor and client bill. While this is not evidence, not having been verified
by affidavit, it is a reasonable basis from which to make an estimate of the
cost to the appellants of resisting the motions. The pro forma bill
referred to by Hugessen JA in Lagiorgia is the amount allowable under
the tariff. In the context of a motion, that amount is readily ascertained
under this Court’s Tariff A.
[6] The costs relating to
the current motions are, I think, best dealt with under two heads – first,
those referable to the motions to amend the Replies, and second, those
referable to the other relief sought by the respondent.
[7] The following are the
salient facts concerning the respondent’s motions to amend her Replies. The respondent was seeking
an indulgence. The purpose of the motions, it seems, was to rectify perceived
shortcomings in the original pleadings. Among these proposed amendments were
several amendments that counsel sought to make to the statement of the
Minister’s assumptions made in assessing the appellants. I did not permit
these, as the material before me offered no explanation as to how the need
arose to amend the assumptions. The other amendments sought were, for the most
part, allowed without serious opposition from counsel for the appellants.
Counsel for the Respondent, before filing the motions, had sought consent from
the appellants’ counsel to make the proposed amendments. Ms. Kamin agreed
to consent to almost all the proposed amendments if the respondent would pay
the costs of amending the Answers, for which she asked $175 for each pleading.
This offer was made by letter to Mr. Chambers, who rejected it out of hand and
proceeded to file these motions. It is evident now that had he agreed to pay
the very reasonable amount that Ms. Kamin had requested for costs, he would
have achieved more of the indulgence he was seeking than he achieved by the motions.
The costs wasted on the motions far exceeded the modest amount of costs (5 x
$175 = $875) requested by the appellants. I consider that paragraphs (3) (a)
(d) (g) and (i) of Rule 147 all militate in favour
of an award of costs that will amount to a complete indemnity to the appellants
in respect of this branch of the motions. Parties who refuse a reasonable offer
to settle interlocutory issues can expect to bear the expense of the subsequent
motions if it turns out to have been unnecessary because to have accepted the
offer would have produced a better result for the party moving. The appellants
are entitled to one counsel fee for the motions to amend, which I fix at $10,000,
based upon $400 per hour for 25 hours. To that should be added a further
$900 to amend the Answers.
[8] I turn now to the
remainder of the relief sought by the respondent’s motions. The respondent was
largely unsuccessful on all the other aspects of the motions. I did order the
production of an unredacted document, but not on any ground advanced by counsel
at the hearing. Similarly, the representative of the corporate appellant was
required by my Order to reattend for further examination as the result of a
correction to his evidence on discovery that his counsel made by letter to the
respondent’s counsel. This too was not the result of a ground that had been
advanced by counsel on the motions. Otherwise, the appellants successfully
resisted the motions. It is significant, too, that as the argument devolved it
became apparent that the motions were largely intended to remedy perceived
inadequacies in the examinations that had been conducted by the respondent’s
counsel.
The appellants should have their costs in relation to these other issues as
well, and I fix the counsel fee at $5,000. I also allow $200 for disbursements.
[9] In Morel v. The Queen,
I said this about the payment of costs in contested interlocutory motions:
[17] This is an appropriate case
in which to apply the practice that has prevailed in Ontario since the decision
in Axton v. Kent, and has since been codified there, which is that costs
of a contested interlocutory motion are made payable forthwith, in any event of
the cause, unless the court is satisfied that a different order would be more
just in the particular case. I agree with the Divisional Court that this is a
salutary practice. It is likely to discourage interlocutory motions that are
not absolutely necessary, and thereby promote the timely and economical
disposition of cases. I see nothing in the present case that would make a
different order more just. The costs therefore will be payable within 30 days
of the date of this order. (footnotes
omitted)
There is nothing in the circumstances of this case that
would lead me to conclude that a different order would be more just. The
appellants were put to the expense of resisting motions that had little merit,
and in my view they should have their costs whatever the outcome of the trial.
[10] The respondent shall,
therefore, pay to the appellants the costs of these motions, which I fix at $16,100
plus GST of $805, a total of $16,905, in any event of the cause. The costs are
to be paid within 30 days of the date of this Order, by cheque payable to
counsel for the appellants. If the appellants are unable to agree as to the
allocation of the costs among them I may be spoken to.
Signed at Ottawa, Canada, this 30th
day of January, 2009.
“E.A. Bowie”
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