Deh Cho First Nations v. Canada, 2006 FC 1318

 

 

 

 

Date: 20061031

Docket: T-1686-04

Citation: 2006 FC 1318

BETWEEN:

GRAND CHIEF HERB NORWEGIAN

the DEH CHO FIRST NATIONS

LLIIDLI KOE FIRST NATION

FORT SIMPSON METIS NATION LOCAL 59

PEHDZEH KI FIRST NATION

T’THEK’EHDELI KI FIRST NATION

KA’A’GEE TU FIRST NATION

SAMBE K’E DENE BAND

 

Applicants

and

 

 

HER MAJESTY THE QUEEN IN RIGHT

OF CANADA as represented by the

MINISTER OF ENVIRONMENT, the

ATTORNEY GENERAL OF CANADA

IMPERIAL OIL RESOURCES VENTURES LIMITED

THE INUVIALUIT REGIONAL COUNCIL

THE INUVIALUIT GAME COUNCIL

THE SAHTU SECRETARIAT INCORPORATED

and GWICH’IN TRIBAL COUNCIL

 

Respondents

 

 

 

REASONS FOR JUDGMENT

Charles E. Stinson

Assessment Officer

 

[1]               The Applicants brought an application (filed September 16, 2004) for judicial review of a decision by the Minister of Environment to establish a panel for an environmental assessment relative to a proposed MacKenzie Valley gas pipeline. Initially, the Respondents, the Sahtu Secretariat Incorporated and the Gwich’in Tribal Council (the Sahtu Respondent and the Gwich’in Respondent respectively, and where appropriate the Respondents) were not named respondents, but the Court subsequently (Order dated December 6, 2004) added them as parties interested in or directly affected by this judicial review. This Order also added as Respondents the Inuvialuit Regional Council and the Inuvialuit Game Council (the Inuvialuit Respondents) and Imperial Oil Resources Ventures Limited. The Court, further to the hearing (March 11, 2005) of the Applicants’ motion for production of documents, ordered (March 15, 2005) the federal government respondents to produce certain documents. The Court ordered (June 24, 2005) that this matter be held in abeyance until October 3, 2005, pending final settlement or discontinuance. The Applicants filed a notice of discontinuance on October 21, 2005. I issued a timetable for written disposition of the assessment, further to Rules 402 and 412, of the Respondents’ bills of costs.

 

I.          The Respondents’ Position

[2]               The Respondents argued that paragraph [4] of the March 15, 2005 decision, referring to the numerous environmental assessments and interested parties relative to the pipeline project, indicates the complexity and amount of work required for this litigation, both as factors further to Rules 409 and 400(3)(c) and (g) respectively justifying maximum costs. The Sahtu Respondent and the Gwich’in Respondent each instructed their common counsel separately as they did not have identical positions or interests. The December 6, 2004 order did not require joint conduct. That the Respondents had intended to file a joint affidavit with the Inuvialuit Respondents did not limit their respective individual positions or interests.

[3]               The Respondents noted that the limited amounts permitted by the Tariff for the services of counsel are significantly less than the actual costs. Authorities such as Van Deale v. Van Deale (1983), 45 C.P.C. 166 (B.C.C.A.) hold that costs should not be assessed in hindsight, but as of the circumstances existing at the time they were incurred. Costs, such as for the March 11, 2005 motion by teleconference, were apportioned equally between the respective bills of costs of the Respondents.

 

[4]               The Respondents argued that, in circumstances in which work to prepare a joint affidavit had occurred, it was not necessary to have filed it to be eligible to claim item 2 costs: see Most Wanted Entertainment Co. v. Duff, [2006] F.C.J. No. 1211 (A.O.) at paragraph [9] and National Steel Car Ltd. v. Trenton Works Inc., [1996] F.C.J. No. 678 (T.O.) at paragraph [9]. The coordination of the Respondents’ interests with those of the Inuvialuit Respondents necessitated preparation at an early stage, the costs for which are recoverable and not to be limited by hindsight. The Applicants’ reliance on Ruggles v. Fording Coal Ltd. et al. (1999), 168 F.T.R. 106 (T.D.), to argue that parties represented by a single solicitor should split one award of costs, is misplaced. That is, the circumstances referred to in Ruggles above, i.e. separate costs denied because of parties being two branches of the same company equating to identical factual and legal situations for both, are different from those here. The Sahtu Respondent and the Gwich’in Respondent, as the respective representatives of two independent First Nations occupying separate territories, are not one party advancing a single position: see Southern Property Rentals Ltd. v. Deloitte & Touche Inc. et al., [1999] 231 A.R. 184 (Alta Q.B.).

[5]               The March 15, 2005 order addressed a motion for relief potentially affecting the scope of production of documents from all parties. Although the order did not specifically address the Respondents, they had to appear to protect their interests and are therefore entitled to item 6 costs.

 

II.         The Applicants’ Position

[6]               The Applicants noted that between December 16, 2004 (the date of filing of discrete notices of appearance of the Sahtu Respondent and of the Gwich’in Respondent respectively by a common solicitor of record, and a notice of appearance of the Inuvialuit Respondents by a different solicitor of record) and March 11, 2005, there was no file activity pending a dispute between the Applicants and the federal government parties concerning production of documents. Counsel for the Respondents attended, by teleconference as an observer, the March 11 hearing to address said dispute, but did not take a position on the file, make submissions or file materials. The Applicants succeeded on this motion and were awarded costs. Settlement discussions ensued and there was no further file activity until the June 24, 2005 order putting this litigation in abeyance. Further to Rules 409 and 400(3)(a) (result), (h) (the public interest), (i) (conduct tending to shorten or unnecessarily lengthen proceedings) and (l) (whether parties represented by single solicitor unnecessarily initiated separate proceedings), the claimed costs should be reduced because the Respondents had identical positions and interests, common counsel, and did not need to assert separate factual or legal positions: see Ruggles above. The Applicants conceded the accuracy of the disbursements claimed, which had been split equally ($114.43 in each bill), but generally asserted that the claimed costs are excessive.

 

[7]               The Applicants argued for disallowance of the item 2 claims (respondent’s record) because they addressed an affidavit, never completed or filed, to be prepared jointly by the Respondents and the Inuvialuit Respondents. As well, its preparation was premature and unnecessary because the time limit for its filing had not yet begun to run. Alternatively, any allowable costs should reflect partitioning of item 2 amounts because a joint affidavit is a single document inconsistent with the Respondents’ assertion that it did not in any way limit their respective interests or positions.

 

[8]               The Applicants argued that items 6 (appearance) and 13(a) (preparation) relative to the March 11, 2005 hearing should be disallowed because the Court awarded costs to them and not the Respondents. In any event, the Respondents did not participate in the hearing, other than as observers. Otherwise, they should be found liable to share in the satisfaction of the Applicants’ costs. If they participated on some other basis, the federal government Respondents are liable for satisfaction of their costs. Items 6 and 13(a) should be reduced to 1 unit at most, or eliminated. Alternatively, they should be offset against the Applicants’ costs of said hearing and this assessment of costs. If these assessments result in reductions of the maximum amounts claimed, item 26 (assessment of costs) should go to the Applicants and not the Respondents.

 

III.       Assessment

[9]               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 400(3)(h) to minimize assessed costs. Given resolution by way of discontinuance, I do not have the benefit of the Court’s reasons on the substantive issues of this litigation. That does not require discounting of the Applicants’ position. However, I simply do not think in these circumstances that public interest as a factor on the assessments of costs should be applied against the interests of two First Nations added by order subsequent to institution, regardless of the fact that other First Nations were pressing for judicial review. Rule 400(3)(a) (result) does not help the Applicants’ position: they discontinued and are liable for costs. My disposition below for item 2 subsumes my consideration of the remaining Rule 400(3) factors noted above.

 

[10]           I concluded at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No. 1376 (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 from available ranges. Counsel work associated with item 2 for preparation of a respondent’s record generally occurs over time as opposed to being pegged to the instant before filing. Circumstances can intervene, after work has occurred, which ultimately preclude its filing. There was no evidence that the purported independence of the respective positions here of the Respondents resulted in conflicts in the two sets of instructions to their single or common counsel. Any additional costs arising out of such conflicts would not be the Applicants’ responsibility. The record before me does not indicate whether the work for one was of benefit to the other or somewhat reduced the overall work by counsel. As I think it unlikely that such did not occur, but that some assessable work did occur resulting in an incomplete product because of the intervening circumstance of the discontinuance, I allow only the minimum 4 units ($120.00 per unit) in each bill of costs.

 

[11]           The March 15, 2005 decision granted costs to the Applicants, thereby precluding claims by the Respondents for item 6 counsel fees and associated disbursements. The Crown Respondents scheduled a motion to appeal said decision. The order for abeyance included a general adjournment of said motion. By analogy with the circumstances addressed in Balisky v. Canada (Minister of Natural Resources), [2004] F.C.J. No. 536 (A.O.) at paragraph [6] and Aird v. Country Park Village Properties (Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at paragraph [10], Rules 402 and 412, providing for costs of a proceeding to a party against whom said proceeding has been discontinued, cannot be applied to vacate, vary or interfere with the independence and finality of an interlocutory award of costs. In other words, the March 15, 2005 order does not entitle the Respondents to costs. The record indicates that some, but not all, disbursements were associated with said decision. I reduce the allowable disbursements to $100.00 in each bill of costs.

 

[12]           I take the claim for item 13(a) as preparation for the ultimate hearing on the substantive issues of the judicial review, as opposed to item 5 (preparation for a motion) ordinarily associated with an item 6 appearance such as on March 11, 2005. It is possible that such preparation could have occurred at an early stage, i.e. before the Respondents’ record had been prepared within the parameters of item 2. On the record before me, I am not prepared to allow any costs for item 13(a). In the absence of submissions on the point, I think that the phrase “liable to pay costs” as used in Rule 408(2) likely contemplates an assessment officer first having specific dollar amounts, either by way of a lump sum award or an assessment of costs, before exercising jurisdiction for set-off. Given the absence here of a bill of costs from the Applicants, I decline set-off.

 

[13]           These assessments of costs were straightforward. Although the Respondents were not particularly successful, their materials and submissions indicate careful work leading to some success. I allow item 26 as presented at 3 units in each bill of costs. The respective bills of costs of the Sahtu Respondent and of the Gwich’in Respondent, each presented at $2,425.66, are each assessed and allowed at $998.80.

 

 

“Charles E. Stinson”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1686-04

 

STYLE OF CAUSE:                           GRAND CHIEF HERB NORWEGIAN et al. v.

                                                            HER MAJESTY THE QUEEN et al.

 

 

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE

OF THE PARTIES

 

REASONS FOR ASSESSMENT OF COSTS:                       CHARLES E. STINSON

 

DATED:                                                                                  October 31, 2006

 

 

WRITTEN REPRESENTATIONS BY:

 

Gregory J. McDade, Q.C.                                                          FOR THE APPLICANTS

 

Graham S. Ragan                                                                      FOR THE RESPONDENTS-

THE SAHTU SECRETARIAT INCORPORATED and

GWICH’IN TRIBAL COUNCIL

 

SOLICITORS OF RECORD:

 

Ratcliff & Company LLP                                                          FOR THE APPLICANTS

North Vancouver, BC

 

John H. Sims, Q.C.                                                                    FOR THE RESPONDENTS -

Deputy Attorney General of Canada                                           HER MAJESTY THE QUEEN and ATTORNEY GENERAL OF CANADA

 

Macleod Dixon LLP                                                                  FOR THE RESPONDENT -

Calgary, AB                                                                              IMPERIAL OIL RESOURCES VENTURES LTD.

 

Gowling, Lafleur, Henderson LLP                                              FOR THE RESPONDENTS –

Ottawa, ON                                                                              THE SAHTU SECRETARIAT INCORPORATED and

                                                                                                GWICH’IN TRIBAL COUNCIL

 

Miller Thompson                                                                       FOR THE RESPONDENTS –

Edmonton, AB                                                                          INUVIALUIT REGIONAL COUNCIL and INUVIALUIT GAME COUNCIL