Date: 19981023
Docket: T-2166-97
| IN THE MATTER OF an application to review and set aside, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, a decision of the Public Service Staff Relations Board, rendered by the Board Member Yvon Tarte, on September 5, 1997, respecting a reference to adjudication pursuant to the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRB File No. 166-20-27663) |
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BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
DAVID A. KAHN
Respondent
REASONS FOR ORDER
TEITELBAUM, J.:
[1] This is an application by the respondent (applicant on the present application) for an Order for the payment of costs incurred by the respondent "for all proceedings associated with the motion for judicial review initiated on October 3rd , 1997" and which judicial review proceeding was initiated by the Attorney General of Canada.
[2] As grounds for the present motion for costs, the respondent states in his motion:
| 1. The applicant (Attorney General of Canada) filed a Notice of Discontinuance on May 21, 1998. The applicant served the Notice of Discontinuance on the respondent on June 1, 1998. |
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| 2. Rules 400 and 402 of the Federal Court Rules. |
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[3] The Respondent, as evidence for his motion, filed an affidavit in which he states:
| 2. In an effort to contain costs, I represented myself both at the PSSRB hearing and at this Court. |
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| 3. The proceedings themselves were vexatious and unnecessary. The Applicant"s handling of the file complicated the proceedings unduly and generated many extra steps that required me to obtain ongoing legal advice. |
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| 4. From the time the unfounded allegations were made against me until the Applicant abandoned its application, my total costs for this legal advice amount to $,7874.81 of which $5,215.05 relates to the Judicial Review proceedings in this Court. |
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| 5. In addition to my legal fees I have spent an estimated 250 hours of my own time in the preparation and service of documents and in a Court appearance. |
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| 6. In summary, in spite of being wholly successful in defending myself both at the PSSRB and at the Federal Court, I have suffered penalties as a result of the actions of the Applicant. I therefore seek costs that will address this situation. |
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[4] The respondent was not cross-examined on his affidavit. I therefore am satisfied that the respondent spent the sum of $7,874.81 (plus the sum of $482.46 as per invoice dated August 31, 1998 and produced at the hearing) for "legal advice" of which $5,215.05 related to the judicial review proceedings and $482.46 relates to the present application for costs.
BACKGROUND
[5] The respondent was a project manager employed by C.S.I.S. As a result of an alleged breach of security or of alleged insubordination by the respondent, the respondent sates he was suspended for three days without pay.
[6] The respondent, in his oral submission, states he filed a grievance and after three levels of hearings, his grievance was denied.
[7] The respondent, always representing himself in an effort to contain costs but with the legal advice of an eminent firm of legal counsel, filed a grievance before the Public Service Staff Relations Board (PSSRB). The grievance was filed against Canadian Security Intelligence Service (C.S.I.S.)
[8] On September 5, 1997, after representing himself before PSSRB and with the "advice of counsel", the PSSRB "exonerated" the respondent. The PSSRB agreed with the submission of the respondent and maintained the respondent"s grievance.
[9] As a result of the finding by Yvon Tarte, member of the PSSRB, the applicant, Attorney General of Canada, filed into the registry of the Federal Court of Canada an Originating Notice of Motion for the purpose of obtaining an order setting aside the decision of Yvon Tarte on the ground that "the Board based its decision on an erroneous finding of fact that it made in a capricious manner and without regard for the material before it".
[10] On November 18, 1997, the Attorney General of Canada (AG) presented to the Court a Notice of Motion seeking:
| - an order sealing and prohibiting access by interested parties and/or members of the public until otherwise ordered by this Honourable Court of all exhibits, including Exhibit "A" already filed by the Applicant as well as Exhibits "A" to "E" filed by the Respondent, filed and to be filed with this Court pursuant to the Application to review and set aside, pursuant to section 18.1 of the Federal Court Act , R.S.C. 1985, c. F-7, as amended, a decision of the Public Service Staff Relations Board, rendered by the Board Member Yvon Tarte, on September 5, 1997, respecting a reference to adjudication pursuant to the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRB File No. 166-20-27663). |
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[11] It appears that by Order dated November 18, 1997, the application was partially allowed.
[12] The applicant, The Attorney General of Canada, attempted to file the Motion Record in the judicial review proceedings but was told, on or before December 8, 1997, that his Motion Record contained an affidavit that could not be filed unless he first obtained the Court"s permission to do so. On December 12, 1997, the AG filed such a Notice of Motion pursuant to then Rule 324 (now Rule 369).
[13] The following Memorandum is to be found in the Court dossier:
| Ms. Ainslie Benedict, of the firm Nelligan Power, telephoned on behalf of the Respondent to advise that Mr. Kahn will require more time to respond to the Applicant"s motion. |
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| Mr. Kahn was not served with the further affidavit of Louise Di Stefano, therefore without seeing the content of the affidavit cannot comment on its relevance. Also, he may need to seek direction from the Court in order to determine whether the protective order of Mr. Justice Joyal applies to him in order to view the sealed copy which was received in the Registry. |
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[14] This confirms the fact that Mr. Kahn was dealing with legal counsel for advice.
[15] The respondent, on December 23, 1997 and January 15, 1998, responded to the Notice of Motion. Mr. Justice Rouleau, on January 19, 1998, in a Memorandum, states:
| OBJET/RE: A.G. of Canada v. David A. Kahn T-2166-97 |
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| Nothing in this file is clear. I suggest that the matter proceed before a Motions Judge for a viva voce hearing on any motions day at Ottawa at a time the respondent is available. |
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[16] On February 9, 1998, Mr. Justice Joyal, issued the following direction:
| Further to my Directions dated November 18, 1997, the confidentiality provisions therein do not exclude the parties to the proceedings, namely the A.G. of Canada and the Respondent, Kahn; that is to say, that the parties are expected to have access to any document produced by the opposite party, subject to the confidentiality Order and subject to any further Order of this Court. |
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[17] After various letters to the Court requesting Directions regarding supplementary affidavits of the applicant and references to them in the applicant"s (AG"s) Memorandum for the judicial review application, Mr. Justice Hugessen, on April , 1998, issued the following Order:
| No satisfactory explanation having been given as to why the material now sought to be produced was not produced on time, the motion is dismissed. |
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[18] On April 22, 1998, the respondent brought a motion to the Court to strike portions of the AG"s Memorandum that refer to evidence in a supplementary affidavit "which, by Order of the Court, is not part of the Court file".
[19] Mr. Kahn and counsel for the AG attended before Mr. Justice Muldoon on May 5, 1998 where Mr. Kahn"s application was allowed, on consent.
[20] On May 20, 1998, counsel for the AG sent, by fax, the following communication:
| This is to advise you that the Attorney General of Canada is abandoning its Notice of Motion for judicial review in the present matter. A Notice of Abandonment in accordance with Form 370 of the Federal Court Rules, 1998, will be prepared, served and filed tomorrow with this Court. |
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[21] On June 3, 1998, the AG filed into the Court Record a Notice of Discontinuance.
[22] As a result, the respondent filed a notice of motion for costs.
[23] I have reviewed the Court dossier of proceedings in this file as I am satisfied that one of the considerations in determining if costs should be paid and how much should be paid is the time and effort and complexity of the case.
DISCUSSION
[24] The applicable Rules of the Court are to be found in Rule 400(1), (3)(a)(c)(e)(g)(i)(o)(4)(6)(c), 401(1) and 402:
| 400. (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
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400. (1) La Cour a entière discrétion pour déterminer le montant des dépens, les répartir et désigner les personnes qui doivent les payer.
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| (3) In exercising its discretion under subsection (1), the Court may consider
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(3) Dans l'exercice de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l'un ou l"autre des facteurs suivants :
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| (a) the result of the proceeding; |
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a) le résultat de l'instance;
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| (c) the importance and complexity of the issues; |
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c) l'importance et la complexité des questions en litige;
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| (e) any written offer to settle; |
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e) toute offre écrite de règlement;
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| (i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding; |
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| i) la conduite d'une partie qui a eu pour effet d'abréger ou de prolonger inutilement la durée de l'instance;
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...
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(o) any other matter that it considers relevant.
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| o) toute autre question qu'elle juge pertinente.
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(4) The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs.
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| (4) La Cour peut fixer tout ou partie des dépens en se reportant au tarif B et adjuger une somme globale au lieu ou en sus des dépens taxés.
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...
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(6) Notwithstanding any other provision of these Rules, the Court may
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| (6) Malgré toute autre disposition des présentes règles, la Cour peut :
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...
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| ...
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(c) award all or part of costs on a solicitor-and-client basis; or
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| c) adjuger tout ou partie des dépens sur une base avocat-client; |
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401. (1) The Court may award costs of a motion in an amount fixed by the Court.
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| 401. (1) La Cour peut adjuger les dépens afférents à une requête selon le montant qu'elle fixe.
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402. Unless otherwise ordered by the Court or agreed by the parties, a party against whom an action, application or appeal has been discontinued or against whom a motion has been abandoned is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party.
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| 402. Sauf ordonnance contraire de la Cour ou entente entre les parties, lorsqu'une action, une demande ou un appel fait l'objet d'un désistement ou qu'une requête est abandonnée, la partie contre laquelle l'action, la demande ou l'appel a été engagé ou la requête présentée a droit aux dépens sans délai. Les dépens peuvent être taxés et le paiement peut en être poursuivi par exécution forcée comme s'ils avaient été adjugés par jugement rendu en faveur de la partie.
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[25] There is no doubt that pursuant to Rule 402, a party against whom an application has been discontinued is entitled to costs "forthwith".
[26] The special issue that arises in this case is the assessment of costs, if any, to be paid to a "winning" litigant who, throughout the process was representing himself but, and I emphasize, with the advice of legal counsel and which advice cost the respondent $5,215.05 for the judicial review application.
[27] The respondent states that this sum has been paid by him. I have nothing to contradict this submission.
[28] The respondent is also claiming an amount for the 250 hours he states, in his June 30, 1998 affidavit, he spent of his "own time" in preparation and service of documents and in Court appearance. In his oral submission, the respondent also claimed for disbursements for service of documents and for photocopying.
[29] Rule 400(1) gives the Court full discretionary power to determine what costs should be paid.
[30] Counsel for the applicant, the AG, submits, if I understood his submissions, that because the respondent represented himself, the Court does not have a discretionary power to award costs. His submission is based on a decision of the Federal Court of Appeal in the case of Lavigne v. Canada (Human Resources Development) [1998] F.C.J. No. 855 where, in an oral judgment, Marceau J. states:
| The motions judge could not but confirm that lay litigants cannot receive counsel"s fees, under the Federal Court Rules, when they have successfully represented themselves. Under Tariff B of those Rules, a service cannot be rendered by a litigant to himself. The Courts, be it the Trial Division or the Court of Appeal, are not at liberty to change what is legislation. |
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| We are prepared to admit that the appellant has a point when he says that it could be unfair to deny successful lay litigants, who could not afford to be represented by counsel, some costs that could compensate them for the time they had to give and the "legal skills" they had to apply to satisfy the requirements of the Rules for bringing their cases to the tribunal. We are not sure that the actual rule 400(4) (formerly 344(4) could not, to a certain extent, be used to satisfy, in special cases, what fairness could dictate in that respect. However, we have no doubt that a change in the Act or the Rules would be required to provide openly that lay litigants could be entitled, in whole or in part, to fees that, up until now, have always been formally reserved to counsel. |
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[31] I fail to see how the case of Lavigne (supra) relates to the facts before me. First, in the case of Lavigne (supra), it is clear that Lavigne commenced the procedures in which he was apparently successful. In the case at bar, it was the applicant, The Attorney General of Canada, who commenced the judicial review proceedings causing the respondent to spend the time and money to defend the judicial review application and to cause the respondent to seek the legal advice he required to defend his interests.
[32] In addition, the respondent, if I understood his oral submission, is not claiming under Tariff B but is claiming for his out of pocket expenses paid to his legal counsel for "advice" and for his "lost time" due to the amount of time he was "forced" to spend to defend his interest in a judicial review application that obviously had no merits as the Attorney General discontinued the application.
[33] I am satisfied that the case of Lavigne (supra) does not, in any way, limit my discretion to determine the appropriate sum to be awarded to the respondent for his out-of-pocket disbursements and for the time he spent in "defending" his interests.
[34] Having said the above, what is an appropriate sum to be paid to the respondent for his costs?
[35] I am bound to follow Mr. Justice Marceau when he states in Lavigne (supra) "that lay litigants cannot receive counsel"s fees, under the Federal Court Rules, when they successfully represented themselves".
[36] This does not mean to say, as I have said, that lay litigants who retain counsel for legal advice in order to defend their interests, cannot be reimbursed for this expense and be reimbursed for any other expense caused to the litigant as a result of the legal proceedings instigated, in this case, by the applicant.
[37] The applicant shall reimburse the respondent the sum of $5,697.51 which sum represents the fees paid by the respondent to his legal counsel for legal advice on the judicial review application and the notice of motion for costs.
[38] Pursuant to Rule 3 which states:
| 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
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3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus et économique possible.
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and Rule 400(4), I am satisfied that the respondent should be reimbursed a lump sum of $2,500.00 to cover his disbursements for Court attendance and for time spent in consultation with his legal counsel and for time spent in the photocopying of documents and service of documents.
[39] Counsel for the applicant submitted for my consideration the Supreme Court of Canada case of Young v. Young, 108 D.L.R. (4th) 193 at 283 where McLachlin J. states:
| The Court of Appeal"s order was based on the following principles, with which I agree. Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs; nor is the fact that part of the cost of the litigation may have been paid for by others. |
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[40] Counsel states that by the fact that I am ordering the applicant to reimburse the respondent for his disbursement for legal advice, I am, in effect, ordering the applicant to pay solicitor-client costs.
[41] I, with respect, do not agree. No monies are being paid for legal fees for Court attendance. All that is being reimbursed are funds paid for legal advice.
CONCLUSION
[42] The respondent is to be repaid the sum of $5,607.51 spent by him in defending his interests on the judicial review application commenced by the applicant and discontinued by the applicant plus the sum of $2,500.00 as a lump sum to reimburse the respondent for his "lost" time in defending his interests in, what turned out to be, an unnecessary judicial review application.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, Ontario
October 23, 1998
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