[1] In 1997, the Plaintiff, Derik Christopher Lord (hereafter "Derik Lord"), was an inmate at Kent Institution in British Columbia. The other five Plaintiffs are members of his family: his father, David William Lord (hereafter "David Lord"); his mother, Lorraine Elouise Lord (hereafter "Elouise Lord"); his sisters, Coralee Rebecca Lord and Dawn Andrea Lord (hereafter "Coralee Lord" and "Dawn Lord" respectively) and his grandmother, Vera Hannah Lord (hereafter "Vera Lord"). This action, for damages further to an incident during a private family visit at Kent Institution, was allowed in part with damages of $500.00, $1,000.00, $2,000.00 and $2,000.00 to Elouise Lord, Coralee Lord, Dawn Lord and Vera Lord respectively, plus costs. The Court decided that Derik Lord was not entitled to damages, but did not award any costs as against him. The Court rejected David Lord's claims and awarded costs to the Defendant as against him.
[2] My decision concerning the costs of Elouise, Coralee, Dawn and Vera Lord, reported at [2004] F.C.J. No. 430 (A.O.) (hereafter "the first assessment"), outlines generally the principles for disposition of the Defendant's bill of costs presented here for assessment as against David Lord and for which I directed written disposition.
David Lord's Position
[3] David Lord argued that, regardless of his leadership role, all six Plaintiffs had equal status as litigants and therefore he is responsible for only one-sixth of the Defendant's costs as opposed to the one-half claimed by the Defendant. Further, Elouise Lord did much of the work and therefore the Defendant cannot assert that the bulk of case preparation revolved about him to the exclusion of the other Plaintiffs. David Lord argued, relative to the results in the first assessment, that the Defendant's claimed costs should be reduced because they are excessive and appear to relate to other litigation ongoing at the time.
The Defendant's Position
[4] The Defendant argued, relative to the comments in the Court's October 20, 1997 decision, that the Statement of Claim "is embarrassing in that it is disjointed, ill-defined and confusing" and that a Defendant "would find it impossible to plead to in any coherent matter [sic]", that lay litigants present unique challenges in litigation. Further, the Charter arguments and various allegations of defamation, human rights violations and assault infused this litigation with complex legal principles to be addressed.
[5] The Defendant noted paragraphs 171-73 of the trial judge's decision, reported at [2001] F.C.J. No. 640 (F.C.), concluding that David Lord was partially responsible for damages suffered by the other Plaintiffs. The Defendant argued that Elouise Lord's administrative functions on behalf of the other Plaintiffs did not diminish the reality that the Defendant's case preparation largely focussed on the consequences of David Lord's actions. All of this, coupled with the space in the Court's decision devoted to the cause of action attributable to David Lord, confirms that the majority of case preparation revolved about him. Therefore, assessable services (counsel fees) are reduced by a factor of 50%, but disbursements are apportioned equally between all Plaintiffs, meaning that only one-sixth thereof are claimed against David Lord. David Lord's references to other dispositions of costs and to excessiveness are irrelevant in the context of the award of costs against him.
Assessment
[6] David Lord purported to act on behalf of the other Plaintiffs in signing the Statement of Claim. His unsuccessful motion early in this litigation for an order permitting him to represent all Plaintiffs included as grounds an assertion that each Plaintiff could have brought a separate action. Paragraph 4 of the October 20, 1997 order, in response to the Defendant's motion for conditional appearance, provided for the striking of the action of any Plaintiff not properly advancing a notice of intention to represent himself or herself. The trial judge's decision supra carefully dissected the several causes of actions into two sets of questions addressing the visual inspection policy (periodic head count of visitors) and the termination of the private family visit. My reading of the record is that, although the other Plaintiffs were supportive of David Lord's challenge of the visual inspection policy, said challenge was not central or integral to their respective causes of action, but was of particular relevance to his. Further, the trial judge's decision supra segments disposition of some elements of the causes of action while grouping others in a single disposition. The sense is that the various causes of action asserted by the Plaintiffs other than David Lord would not have been raised but for his unacceptable conduct: see for example paragraphs [108] - [127] inclusive and [177] of the trial judge's decision supra.
[7] This is all simply to observe that, although the respective causes of the Plaintiffs were properly joined in a single Statement of Claim, David Lord cannot shield himself from litigation costs flowing from his conduct by asserting that his cause of action was so commingled with those of other Plaintiffs that their successes in their respective causes of action, together with costs, should somehow diminish his own liability for costs. Further, the bundling of causes of action into this single proceeding likely simplified case preparation overall for the Defendant. I note that the Defendant's total of $259.48 for disbursements, being approximately one-sixth of the total for this litigation, is in the order of the disbursements allowed for certain of the Plaintiffs in the first assessment for their efforts. I allow the $259.48 as claimed.
[8] As for counsel fees, the reality is that the Court had the jurisdiction to dispose of each Plaintiff's cause of action as it did, including separate awards of costs. In David Lord's case, said award was adverse to his interest and the Defendant is entitled to a full set of costs subject to limiting factors such as apportionment, considered at paragraph [9] of the first assessment. The scathing comments concerning David Lord in the trial judge's decision supra at paragraphs [169] - [179] inclusive, versus the more temperate, but still somewhat critical comments concerning Elouise Lord at paragraphs [157] - [168] inclusive, reinforce my view of the distinctiveness of the respective causes of action because, in fact, Elouise Lord succeeded with costs whereas David Lord did not.
[9] Generally, although I do not doubt the sincerity of the Plaintiffs here in attempting to secure important declarations of law concerning rehabilitation programs for inmates which would apply in future to families other than their own, I do not think that this was the most complex of litigation. The Defendant claims fees in lower half of available ranges, including in some instances the minimum value. 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 are required between an upper versus lower allowance from available ranges. David Lord's submissions were not helpful.
[10] I think that only three items in the Defendant's bill of costs warrant adjustments. First, the pre-trial conference, originally scheduled for November 30, 1999, proceeded on January 26, 2000 for about 30 minutes. The available range for item 11 (attendance) is 1-3 units per hour. The bill of costs claims 4 units. I allow 1 unit. Second, the bill of costs claims 25 units under item 14(b) for second counsel at trial. The Court did not so visibly authorize said claim per the language of item 14(b). Given ss. 4 and 5.1(1) of the Federal Courts Act and Rule 2 of the Federal Courts Rules defining the Court, and Rule 2 of the Federal Courts Rules defining an assessment officer, the absence of that exercise of prior discretion by the Court leaves me without jurisdiction to assess item 14(b) and I therefore disallow the 25 units claimed. Third, I reduce the maximum 6 units claimed for item 26 (assessment of costs) to the mid-range value of 4 units. Otherwise, the bill of costs is allowed as presented.
[11] The Defendant's bill of costs as against David Lord, presented at $6,749.48, is assessed and allowed at $5,099.48. The Defendant was entitled to claim for various counsel fee items as a function of the award of costs. That amounted to $12,980.00 which my allowances reduced to $9,680.00. The Defendant proposed apportionment thereof at 50%. I think that the Plaintiffs other than David Lord were caught up in his actions and I think that several of the questions identified by the Court for resolution were largely attributable to him. I applied the 50% apportionment advanced by the Defendant. As noted earlier, a one-sixth apportionment was applied where appropriate to the disbursements.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
February 9, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1354-97
STYLE OF CAUSE: DAVID WILLIAM LORD et al.
- and -
HER MAJESTY THE QUEEN
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL
APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: February 9, 2005
SOLICITORS OF RECORD:
John Sims, Q.C. FOR DEFENDANT
Deputy Attorney General of Canada
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