Date: 20050418
Docket: T-1301-98
Citation: 2005 FC 521
BETWEEN:
FRANKLIN WILLIAM MILLER and
MATTHEW TEHA WERENHTON MILLER,
as represented by his litigation guardian
FRANKLIN WILLIAM MILLER
Applicants
and
SIX NATIONS COUNCIL
of the SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS
Respondent
ASSESSMENT OF COSTS - REASONS
PAUL G.C. ROBINSON
ASSESSMENT OFFICER
[1] This is an assessment of costs pursuant to an order of the Federal Court rendered February 5, 2004, relating to the Applicants' judicial review in respect of a decision or order of the Respondent Six Nations Council made May 25, 1998. The Judge of the Federal Court dismissed the judicial review and allowed the Respondent 30 days from the date of the Order to provide him with their claim for reasonable costs. On June 25, 2004, the Judge of the Federal Court ordered:
"The Respondents shall have their costs in this matter in accordance with the mid point of column III of the table to Tariff B, to be assessed with no costs for the assessment."
It should be noted the Federal Court of Appeal in its decision dated September 25, 2002, ordered:
"7. Costs for this appeal are to be reserved to the judge hearing the application."
[2] I note the Federal Court of Canada's obiter dictum observation in IBM Canada Limited-IBM Canada Limitée v. Xerox of Canada Limited, and Xerox Corporation, [1977] 1 F.C. 181 at 182:
The bills of costs from the Trial Division and this Court were combined and in hearing this application we do not wish it to be taken that we consider that combining bills of two different divisions of the Federal Court is proper procedure. In fact, we seriously question the propriety of proceeding in that way.
For technical consistency and in the interests of expediency, I have filed a copy of these Assessment of Costs - Reasons on each of the Federal Court and Federal Court of Appeal proceedings and they apply there accordingly.
[3] The Respondent filed its bill of costs on October 19, 2004 in the Federal Court.
[4] Directions were issued on November 22, 2004, setting a timetable for written submissions and supporting material. The Respondent filed an Amended Bill of Costs and Written Submissions on December 17, 2004 with proof of service for both documents.
[5] It should be noted the Applicants' law office was contacted with regards to the timetable for the filing of materials. It was confirmed the Applicants' solicitor was aware of the time frames but no action was taken with regards to the filing of responding materials to the Respondent's Bill of Costs.
[6] The Federal Courts Rules do not contemplate a litigant, having notice of an assessment of costs and not participating, benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a Bill of Costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of a judgment and tariff. I have examined the assessable services and disbursements within those parameters.
Assessment
[7] I must consider the two orders of the Federal Court and Federal Court of Appeal which I mentioned in paragraph [1] and Rule 400(1), (3), (4), (5) and (6) of the Federal Courts Rules as part of the basis for my reasons in allowing or disallowing specific assessable items and disbursements. In my opinion, the Federal Court of Appeal decision indicates the Judge of the Federal Court is to deal with the issue of costs in all matters relating to this judicial review. Of course, I will adhere to the latter Order of the Federal Court Judge and his directions when he states:
"The Respondents shall have their costs in this matter in accordance with the mid point of column III of the table to Tariff B, to be assessed with no costs for the assessment."
Accordingly, I note the Respondent has requested the top of the unit scale in Column III of Tariff B and in some cases I have reduced these units on the assessable services allowed to comply with the previously mentioned Federal Court and Federal Court of Appeal decisions. In the interests of simplicity, I will have to outline each assessable service claimed in the order they appear in the Bill of costs.
[8] Item 2 - "Preparation and filing of Notice of Appearance on July 14, 1998 including Consent extending period of service of appearance". On the first page of the Respondent's Bill of Costs, 7 units are claimed for this assessable service in the Federal Court proceeding. In the Federal Courts Rules Item 2 reads "Preparation and filing of all defences, replies, counterclaims or respondent's records and materials." Using my discretion with regards to these particular circumstances, I extend the wording "...and materials" to include the filing and service of the Notice of Appearance, consent and proof of service. Column III of Tariff B of the Federal Courts Rules indicates the range for this assessable service is 4 to 7 units. I will allow 6 units ($ 660.00).
[9] Item 4 - "Preparation of responding material for motion, including review of all materials on August 10, 1998". The Respondent is requesting the maximum 4 units for this assessable service in the Federal Court proceeding. My review of the registry file and recorded computer entries reveals as of the above noted date, a joint consent, two applicants' affidavits and an affidavit of service were filed which in effect gave the applicants an extension of time to file their affidavits in support of the Notice of Application. I am unable to find any motion that the Respondent refers to in itemizing this request, therefore the 4 units requested are disallowed.
[10] Item 5 - "Preparation for responding to a contested motion, including review of all materials and order dated March 17, 1999" and Item 4 - "Preparation for responding to an contested motion for an Order extending the timetable for examinations in April, 1999". The Respondent is requesting the maximum 7 units and 4 units respectively for both of these assessable services in the Federal Court proceeding. The decision of March 17, 1999 is actually an Order of the Federal Court flowing from the Notice of Status Review dated January 22, 1999, requiring the Applicants to show cause why this judicial review application should not be dismissed for delay. The Applicants served and filed written submissions as their response to the Status Review. The Applicants' submissions contained motion materials which they indicated were not to be filed, but were to be considered as part of the Applicants' submissions that they intended to bring as a motion for an extension of time to complete the pre-hearing steps. The Federal Court memorandum dated March 15, 1999 to the Federal Court confirms that the Respondent did not file any material with regards to this status review. I turn to paragraph 6 of the reasons of Taxing Officer Charles Stinson in Maxim's Bakery Ltd. v. Maxim's Ltd, [2000] F.C.J. 2138:
"...I approve item 27 for the Response to Notice of Status Review, which addressed in part the Requisition for Hearing, but only for 3 units and not the 7 units claimed which fall outside the prescribed range of 1-3 units ..."
However, this reasoning cannot apply here since the Respondent did not file any responding materials to the status review and there was no motion at this time to respond to. Therefore, I disallow the units claimed above.
[11] Item 7 - "Discovery of Documents" and Item 8 - "Preparation for an examination on the affidavit of the applicants dated April 20, 1999". The Respondents have claimed 5 units for each of the assessable services above. I note that page 4 of the Written Submissions of the Respondent (Assessment of Costs) indicates that the Directions to Attend to the Applicants requiring them to attend at a cross-examination was actually for April 28 and 29, 1999. Column III of Tariff B of the Federal Courts Rules indicates the range for both these assessable services are 2 to 5 units. I will allow 4 units for each assessable service for a total of 8 units ($ 880.00).
[12] Item 4 - "Preparation for responding to an uncontested motion, including review of all materials and Order dated April 23, 1999". The Respondent's request of 4 units for this item flows from the paragraph above since the Applicants filed a motion seeking an extension of time to complete cross-examinations as well as other relief. On April 21, 1999, the parties filed a joint consent to this motion. Attached to the consent was the draft order which I note was "...Consented to as amended 20 April 1999..." and it is signed by the solicitor for the Respondent. Neither this draft nor the actual decision of the Federal Court on April 23, 1999 makes any mention of costs. I note it is a well established principle that costs are at the respective Court's discretion and where an order is silent with respect to costs, it implies that there is no visible exercise of the respective Court's discretion under Rule 400(1). Reference may also be made to a relevant passage in Mark M..Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, par. 105.7:
..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"....
I also rely on Kibale v. Canada (Secretary of State), [1991] 2 F.C. D-9 which echoes the
same sentiment:
If an order is silent as to costs, no costs are awarded.
For these reasons, the 4 units requested are disallowed.
[13] Item 4 - "Preparation for responding to an uncontested motion, including review of all materials and dated July 26, 1999". The Respondent is requesting 4 units for this assessable service. The Applicants' motion materials seek a further extension of time to complete cross-examinations and other relief. A joint consent was filed on July 16, 1999 with a draft order attached. As no mention of costs was made in either the draft order or the decision of the Federal Court on the motion, I must rely on my reasoning in paragraph [12] above and disallow the 4 units requested.
[14] Item 8 - "Preparation for examination on the affidavits of the applicants dated February 21, 2000". The Respondent is requesting 5 units for this assessable service. On page 5 of the Written Submissions of the Respondent (Assessment of Costs), the Respondent outlines this second attempt to cross-examine the Applicants. For the reasons stated in paragraph [11] above, I will allow 4 units ($ 440.00) for this assessable service.
[15] Item 5 - "Preparation for responding to an uncontested motion, including review of all materials and order dated February 21, 2000". The Respondent is seeking 7 units for this assessable service. The order of the Federal Court dated February 21, 2000 partially granted the relief that was sought but was silent as to the issue of costs. I rely my reasons in paragraph [12] above with respect to The Law of Costs ,supra and Kibale, supra to disallow the 7 units requested.
[16] Item 5 - "Preparation for responding to a contested motion, including review of all materials and order dated May 16, 2000". Applicant's motion to amend the style of cause and other relief was dealt with on a returnable motions day in Toronto on May 15, 2000. The Federal Court was provided with a draft order later that day approved to as to form and content signed by both parties. The resulting interlocutory order of the Federal Court partially granted the relief sought in the motion by amending the style of cause. In addition to the latter, the decision indicated that the parties on consent had agreed that the unresolved issues of this motion would be decided on the basis of written submissions, set out a timetable for the service and filing of supplementary motion material and reserved the issue of costs to be dealt with by the Federal Court on the disposition of the motion. On November 19, 2000, the Federal Court finalized its decision on this motion and ordered in paragraph 4:
4. There will be no costs to any party on this motion.
In accordance with the said Order, no costs may be granted with respect to this motion and therefore, I disallow the 7 units requested.
[17] Item 5 - "Preparation of contested motion, including materials and order dated June 12, 2000". The Respondent is requesting 7 units for this assessable service. The Prothonotary in his decision dismissed this motion and in paragraph 2 ordered:
2. There shall be no costs to either party on the motion.
For the reasons mentioned in paragraph [16] above, I disallow the 7 units requested.
[18] Item 17 - "Preparation, filing and service of notice of appeal dated November 29, 2001"; Item 18 - "Preparation of appeal book"; Item 21 - "Preparation of uncontested Motion, including all material and Order dated January 18, 2002"; Item 21 - "Preparation of contested motion including all material and Order dated March 20, 2002"; Item 21 - "Preparation of contested motion including all material and Order dated September 25, 2002"; and Item 21 "Preparation of contested motion including all material and Order dated February 24, 2003". The Respondent is requesting 1 unit, 1 unit, 3 units, 3 units, 3 units and 3 units respectively for each of the assessable services outlined above for the Court of Appeal proceeding A-672-01. Rule 400(1) of the Federal Courts Rules, states:
Rule 400(1) - Discretionary powers of the Court - 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.
I turn to the case of Morrison v. Morrison, [1928] 2 D.L.R. 998 (Ont. S.C. App. Div) and the issue of the Trial Judge's discretion not being disturbed in not awarding costs. Middleton J.A. affirms the decision of the lower Court judge and states his reasons for doing so:
...
One may also suspect that there is sometimes behind the decision a benevolent misapprehension on the part of the Judge, who fails to realize that the magic words, "no costs" in truth condemn the successful litigant to pay costs.
The result of much litigation, with great diversity of judicial opinion, is in the end crystallized by the decision of the House of Lords in Campbell & Co. v. Pollak, [1927] A.C. 732. That decision establishes, at p. 811, per Viscount Cave, L.C., that a successful litigant has, "in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs ... but ... the Court has an absolute and unfettered discretion to award or not to award them."
This is strictly applicable only to cases in which there is no appeal as to costs as of right. Section 23 of the Judicature Act, which deals with this matter, is confined to decisions in the Supreme Court and has no application to cases in the County Courts. It is more outspoken than the corresponding section of the English Act and seems quite incapable of that destructive qualification which by a long series of cases had so encrusted the corresponding section of the English Act as to make it largely a dead letter and meaningless until these cases were themselves wiped out by the decision of 1927.
But there are other cases which warn against the assumption that justice is accomplished by substituting the discretion of an Appellate Court for the discretion of the trial Court. Speaking generally, the trial Court has many advantages denied to the Appellate Court even though the Appellate Court has the advantage of a calmer and more serene atmosphere. The duty of the Appellate Court is defined in Young v. Thomas, [1892] 2 Ch.
134. In that case there was an undeniable right of appeal, for the Judge below had given leave, yet Lindley, L.J., said at pp. 136-7:--
If we were to accede to the present appeal we should be substituting our discretion for the discretion of the Judge in the Court below, which we have no right to do. Even though leave has been given to appeal, this Court will refuse to review the exercise of the discretion of the Judge. If his judgment had proceeded on an erroneous principle, if he had not really exercised his discretion at all, there is no doubt that we could review his decision as to costs ... The Judge has exercised his discretion, and, there being no error in point of law, we must decline to review his decision.
I venture to think that this may go too far and be tantamount to denying the right of appeal given by statute, but it makes it plain that where the whole matter is one of pure discretion interference is justified only upon the rarest occasion.
...
The Notice of Appeal in this matter arose from an interlocutory decision of the Federal Court Judge dated November 19, 2000 and I note I have dealt with this requested assessable service in paragraph [16] above. The Court of Appeal decision on consent varied the Federal Court decision November 19, 2000, but did not disturb the costs issue for the interlocutory Federal Court motion. In addition, the Court of Appeal did not order costs for the appeal but left that issue to the discretion of the Federal Court Judge hearing the judicial review. I rely on the reasons outlined in Morrison v. Morrison supra and note the Federal Court Judge hearing the application could not vary the disposition of the costs for the motion of November 19, 2000. Although the Federal Court could have ordered costs for the Court of Appeal proceeding, it did not do so in the June 25, 2004 decision. Based on all of this reasoning, I disallow all of the units for the assessable services requested in the Court of Appeal proceeding.
[19] Item 8 - "Preparation for an examination on the affidavits of the applicants" and Item 9 - "Attending on the examination in Brantford on January 12, 2004". The Respondents have claimed 5 units and 3 units respectively for each of these assessable services in the Federal Court proceeding. I note pages 7 and 8 of the Written Submissions of the Respondent (Assessment of Costs) indicates the Directions to Attend were served on the Applicants requiring them to attend for cross-examinations scheduled for January 12 and 16 , 2004. However, the persons to be examined did not attend at the cross-examinations. Column III of Tariff B of the Federal Courts Rules indicates the range for these assessable services are 2 to 5 units and 0 to 3 units respectively. I reduce the units requested to 4 and 2 units respectively for each assessable service for a total of 6 units
($ 660.00).
[20] Item 21 - "Preparation of contested motion including all material and Order dated February 5, 2004" and Item 25 - "Assessment of costs". Item 21 is the Respondent's motion for "an order striking out the application, with costs to the Six Nations Council". The Respondent requests 3 units and 6 units respectively for each of these assessable services. The final decision of the Federal Court dismissing this judicial review on February 5, 2004, also states:
2. Costs will not be awarded on a solicitor-client basis but the Respondents shall have 30 days from the date of this Order to provide the Court with their claim for reasonable costs which shall then be fixed by the Court.
The Federal Court on June 25, 2004, then ordered:
The Respondents shall have their costs in this matter accordance with the mid point of column III of the table to Tariff B, to be assessed with no costs for the assessment.
In my opinion with regards to the specific relief of costs sought for this motion, I believe the Federal Court decision of February 5, 2004 should be interpreted to include costs in these circumstances. Therefore, I allow the 3 units ($ 330.00) for Item 21. However, the Order of June 25, 2004 is quite specific and the 6 units requested for Item 26 the assessment of costs are disallowed.
[21] With regards to the disbursements claimed, I do not allow the $50.00 disbursement for the cost of the Notice of Appeal in A-672-01 for the reasons outlined in paragraph [18] above. For the remainder of the disbursements claimed, I rely on the reasons of Taxing Officer Charles E. Stinson in Grace M. Carlile v. Her Majesty the Queen, [1997] , 97 D.T.C. 5287.
... Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. ...
Further, Phipson on Evidence, Fourteenth Edition (London: Sweet and Maxwell, 1990) at page 78, paragraph 4-38 states that the " standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars on the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donation of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd ....
The Respondent will be allowed the disbursements of $ 4,660.28 which includes the GST.
[22] The Bill of Costs in A-672-01 is assessed in the amount of nil dollars. A certificate is issued in this Federal Court of Appeal proceeding for nil dollars.
[23] The Bill of Costs in T-1301-98 is assessed and allowed in the amount of $ 7,367.38 which includes assessable services, disbursements and applicable GST. A certificate is issued in this Federal Court proceeding for $ 7,367.38.
"Paul G.C. Robinson"
Paul G.C. Robinson
Assessment Officer
Toronto, Ontario
April 18, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1301-98
STYLE OF CAUSE: FRANKLIN WILLIAM MILLER and
MATTHEW TEHA WERENTON MILLER, as represented by his litigation guardian FRANKLIN WILLIAM MILLER
Applicants
and
SIX NATIONS COUNCIL
of the SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: PAUL G.C. ROBINSON, Assessment Officer
DATED: APRIL 18, 2005
SOLICITORS OF RECORD:
Klippensteins For the Applicants
Barristers & Solicitors
Per: Mr. Murray Klippenstein
Toronto, Ontario
Blake, Cassells & Graydon LLP For the Respondent
Barristers & Solicitors
Per: Ms. Dera J. Nevin,
Toronto, Ontario
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