Date: 20061012
Docket: T-138-05
Citation: 2006 FC 1215
BETWEEN:
KURT HIEBERT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
ASSESSMENT OF COSTS – REASONS
Charles E. Stinson
Assessment
Officer
[1]
The
application for judicial review of a decision of the Commissioner of the
Correctional Service of Canada to uphold an earlier decision to transfer the
Applicant from a medium to a maximum security penitentiary was dismissed with
costs. I issued a timetable for written disposition of the assessment of the
Respondent’s bill of costs.
I. The Respondent’s Position
[2]
The
Respondent argued that the claimed total of $3,263.29 for costs is reasonable
and fair in the circumstances of this case, i.e. the Court’s finding that the
decision to transfer the Applicant was not patently unreasonable. Although
entitled to do so, the Respondent is not claiming item 26 counsel fees
(assessment of costs). Relative to the significant amount of time required to
prepare for and to argue this matter, the Respondent’s conduct does not warrant
any reductions, further to Rules 409 and 400(3) factors, of the maximum amounts
claimed for counsel fees. The Applicant’s asserted lack of resources is
irrelevant: see Chaperon v. Canada, [1992] 3 F.C. D-9 (T.O.).
II. The Applicant’s Position
[3]
The
Applicant argued further to Rules 409 and 400(3)(c) (importance and complexity)
that the underlying facts, i.e. he has served approximately 20 years of his
life sentence and does not have a release date, reinforce the importance of
this proceeding to the Applicant, i.e. to confirm the lawfulness of the
transfer decision because of its potential negative impact on conditional
release considerations. That is, paragraph [32] of the Court’s decision,
reported at [2005] F.C.J. No. 2136 (F.C.), confirmed that the subject transfer
as a function of certain allegations of misconduct constituted a punishment.
Counsel for the Respondent was senior in status with considerable experience in
correctional law matters and therefore handled this matter with ease.
[4]
The
Applicant argued further to Rule 400(3)(e) (written offer to settle) that the
circumstances here precluded any middle ground, i.e. paragraph [19] of the
Court’s decision above referring to his increased security classification, to
several reliable reports of his drug trafficking and threats with weapons, to
his admission of uncontrollable drug use and to his past record. That the
Applicant submitted to the grievance procedure, and that the Respondent ignored
an internal recommendation to return the Applicant to medium security and
instead proceeded on an amended grievance, indicate the latter’s willingness to
settle. Further, the evidence is that the impecunious state of the Applicant
did not prevent him from offering to pay costs at the rate of $2.00 every two
weeks. Relative to Rule 400(3)(h) (public interest), although the Court found
that he had not been treated in an arbitrary fashion, it was arguable and a
matter of public interest that he had been treated inconsistently by federal
authorities. For these various reasons, the maximum claimed amounts for counsel
fees should be reduced to the minimum amounts permitted by Tariff B.
III. Assessment
[5]
The
Applicant did not assert any objection to the claimed disbursement total of
$1,073.29, which I find reasonable in these circumstances and allow as
presented. The same applies to counsel fee item 25 (services after judgment).
In Bow Valley Naturalists
Society et al. v. Minister of Canadian Heritage et al., [2002]
F.C.J. No. 1795 (A.O.), I considered the relevance of public interest for
assessments of costs and concluded that the application of Rules 409 and 400(3)
factors against the interest of successful litigants would require carefully
considered discretion. That a judgment for costs does not accord the
unsuccessful litigant special consideration relative to costs as a function of
public interest does not preclude me from applying Rules 409 and Rule 400(3)(h)
(public interest) to minimize assessed costs. The Applicant’s argument is
compelling. However, I find nothing to suggest that the Court’s analysis and
findings concerning his institutional treatment would engage the public
interest, i.e. by establishing precedent so pervasive as to significantly
affect or alter the treatment of prisoners in the future. That is, the
Applicant’s interest in the outcome here was really of significance to only
himself, i.e. the development of the best position for his early release.
[6]
The
Court having exercised its discretion under Rule 400(1) to award costs, I do not
think that financial hardship falls within the ambit of “any other matter” in
Rule 400(3)(o) as a factor relevant and applicable by an assessment officer,
further to Rule 409, to minimize assessed litigation costs. As well, I discount
offers to settle as a factor one way or the other. The Applicant was about 20
years into a life sentence, including two years in segregation, and was
convinced that the transfer decision would significantly impair his bids for
conditional release. Given that his challenge was not against a decision
denying him conditional release, but rather against a decision which could be
part of the record before, and a factor applied by, those officials considering
future bids for conditional release, I doubt that there was much, if any, possibility
here for achieving middle ground. Although I discount here, as a factor to
minimize assessed costs, the experience of the Respondent’s counsel, I do
however find that complexity as a factor should result in counsel fees at less
than the maximum amounts permitted in the tariff.
[7]
I
concluded at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No.
11376 (A.O.) that the same point in the ranges throughout the tariff need not
be used, as each item for the services of counsel is discrete and must be
considered in its own circumstances. As well, broad distinctions may be
required between an upper versus lower allowance for available ranges. The
issues identified in paragraph [19] of the Court’s decision above, i.e. whether
the transfer decision was patently unreasonable and was the Applicant’s right
to procedural fairness breached, can be difficult to address. Here, the Court
seemed to have little difficulty in arriving at a decision based on the record
before it. I allow items 2 (respondents’ record), 13(a) (preparation for
hearing) and 14(a) (appearance at hearing) (available ranges 4 - 7, 2 - 5 and 2
- 3 units respectively / unit value = $120.00) at 5, 2 and 2 units
respectively. The Respondent’s bill of costs, presented at $3,263.29, is assessed
and allowed at $2,453.29.
“Charles
E. Stinson”
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