Date: 20050112
Docket: T-636-02
Citation: 2005 FC 24
BETWEEN:
ROBERT J. RICHARDS and SANDRA L. RICHARDS
Applicants
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Mr. and Mrs. Richards instituted judicial review proceedings before this Court in relation to the Privacy Act. Their allegation that they were refused access to information was dismissed by Lemieux J.
[2] He said "[F]or the reasons given, I cannot conclude the applicants have been refused access to personal information and, therefore, this section 41 Privacy Act application is dismissed.
[3] There was no mention of costs in the order, or in the reasons therefor.
[4] Although the order was silent as to costs, the Minister nevertheless brought on a Bill of Costs for taxation. The basis of the application is section 52 of the Privacy Act, R.S. 1985, c. P-21, as amended, which reads:
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52. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
(2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.
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52. (1) Sous réserve du paragraphe (2), les frais et dépens sont laissés à l'appréciation de la Cour et suivent, sauf ordonnance contraire de la Cour, le sort du principal.
(2) Dans les cas où elle estime que l'objet du recours a soulevé un principe important et nouveau quant à la présente loi, la Cour accorde les frais et dépens à la personne qui a exercé le recours devant elle, même si cette personne a été déboutée de son recours.
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[5] There is nothing in the order or in the reasons to indicate that an important new principle in relation to the Act was raised which would have required Lemieux J. to order that costs be awarded to the Mr. and Mrs. Richards.
[6] The Assessment Officer refused to award the Minister costs, although "in the event" he successfully defended the proceedings.. This is a review thereof pursuant to Federal Courts Rule 414.
THE ASSESSMENT OFFICER'S DECISION
[7] In well thought-out reasons, the Assessment Officer came to the view that section 52(1) of the Privacy Act had not actually affected the discretion a judge normally has with respect to costs. He was of the view that the phrase "costs ... shall follow the event unless the Court orders otherwise" only empowers a judge to grant costs to any party, successful or not, or perhaps even to a third party.
[8] He also relied on Orkin, The Law of Costs, (2nd Ed.) 1998, para. 105.7, where it is said:
Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at trial with no mention of costs, it is as though the judge had said that he saw fit to make no order as to costs.
[9] The Assessment Officer candidly admitted the issue gave him some difficulty and that ultimately he "decided against venturing into unchartered territory. The process proved to be a challenging exercise in a fascinating and perhaps novel area of the law. Admittedly, each side has valid arguments and has reasonable expectations of success."
[10] It is well established under Rule 414 that the Court should not interfere with an Assessment Officer's decision except where there is an obvious error in principle or where the amount assessed can be shown to be so unreasonable that an error in principle must be inferred as being the underlying cause (Bellemare v. Canada (AG), 2004 FCA 231).
[11] I have concluded that the Assessment Officer erred and that the Bill of Costs should be sent back to him for taxation because, as a matter of law, Lemieux J.'s order is deemed to have included an order for costs.
[12] The basic premise is that the award of costs is discretionary. Rule 400(1) and (2) provide:
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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.
(2) Costs may be awarded to or against the Crown.
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400. (1) La Cour a le pouvoir discrétionnaire de déterminer le montant des dépens, de les répartir et de désigner les personnes qui doivent les payer.
(2) Les dépens peuvent être adjugés à la Couronne ou contre elle.
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[13] If a judgment does not include an order concerning costs, a party may request directions pursuant to Rule 403.
[14] However, the governing Act, or Regulations, may contain default provisions with respect to costs. Section 52 of the Privacy Act is such a default provision. Since a court already has the inherent jurisdiction to grant costs to an unsuccessful party, or to or against a third party, and, for that matter, occasionally even against a non-party, section 52 has to be taken at its face value.
[15] Another default rule, but to the opposite effect, is Rule 22 of the Federal Court Immigration and Refugee Protection Rules, which provides:
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22. No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.
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22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d'autorisation, la demande de contrôle judiciaire ou l'appel introduit en application des présentes règles ne donnent pas lieu à des dépens.
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[16] Because of this rule, orders in immigration and refugee cases normally do not mention court costs. It is not necessary to say "there shall be no order as to costs" or "each party shall bear its own costs" because the Rules already so provide unless the Court derogates therefrom.
[17] For these reasons, the motion is granted and the matter is referred back to the Assessment Officer for an Assessment of Costs. However, since there was no guiding case law directly on point, there shall be no costs on this motion itself.
"Sean Harrington"
Judge
Ottawa, Ontario
January 12, 2005
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-636-02
STYLE OF CAUSE: ROBERT J. RICHARDS and SANDRA L. RICHARDS
and
THE MINISTER OF NATIONAL REVENUE
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: HARRINGTON J.
DATED: JANUARY 12, 2005
WRITTEN REPRESENTATIONS BY:
SOLICITORS OF RECORD:
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