Date: 20041126
Docket: T-636-02
Citation: 2004 FC 1663
BETWEEN:
ROBERT J. RICHARDS and
SANDRA L. RICHARDS
Applicants
-and-
THE MINISTER OF NATIONAL REVENUE
Respondent
ASSESSMENT OF COSTS - REASONS
FRANÇOIS PILON
Assessment Officer
[1] This application for judicial review was dismissed on December 12, 2003; the Order of the Court reads:
"For 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."
[2] This final Order makes no mention of costs, although parties had both requested costs in their respective memorandum of fact and law. On September 21, 2004 counsel for the respondent filed its bill of costs and requested that it be assessed pursuant to the provisions of Section 52(1) of the Privacy Act which reads:
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.
[3] Mr. John Ashley, the solicitor for the respondent, emphasizes the latter part of Section 52(1) "costs... shall follow the event unless the Court orders otherwise". Counsel submits that, as the Order of December 12, 2003 does not mention costs, these should be awarded to the respondent as claimed pursuant to Section 52(1) of the Privacy Act.
[4] The applicants'arguments in response are summarized as follows. They also rely upon Section 52(1) of the Privacy Act, but stress the words "costs... shall be in the discretion of the Court". In their view assessment officers are without authority to assess costs in the absence of a specific Court order to that effect. They submit that it is a well established principle that costs are in the Court's discretion and that where an order is silent with respect to costs, it implies that there is no visible exercise of the Court's discretion under Rule 400(1).
[5] In further support of their contentions the applicants refer to decisions of Assessment Officer Stinson where it is established that full discretionary power over awards of costs is the prerogative of the Court, not of assessment officers. Reference is also made to a relevant passage in Orkin, the Law of Costs (2nd Ed.) 1998 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."
[6] In trying to resolve this legal issue in a satisfactory and just manner I decided to play the devil's advocate. In vain did I search for cases of jurisprudence and authorities on statutory interpretation to support the respondent's position and ultimately I 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.
[7] However, in the particular circumstances of this case I will subscribe to the applicants'proposition. Assessment officers cannot substitute their authority to grant costs for that of the Court's notwithstanding the provisions of Section 52(1) of the Privacy Act. I think the expression "costs... shall be in the discretion of the Court"in the context of this Statute implies a clear and visible exercise of the judge's discretion. Furthermore, I understand the phrase "costs... shall follow the event unless the Court orders otherwise", to effectively empower judges to grant costs to any party, successful or not in the matter under review and perhaps even to a third party.
[8] In my respectful opinion, the provisions of Section 52(1) of the Privacy Act, read as a whole, form a logical and coherent codification of the allocation of costs under the Act. I find support for this proposition in the principle of the presumption of coherence as expressed by the authors Sullivan and Driedger on the Construction of Statutes, Fourth Edition at page 168. It reads:
"Governing principle. It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as part of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal. This presumption is the basis for analyzing legislative schemes, which is often the most persuasive form of analysis. The presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other."
[9] Finally I found additional guidance in the wording of Section 52(1). "The costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and (my emphasis) shall follow the event unless the Court orders otherwise".The grammatical use of the conjunction "and"usually serves to join, unite and combine. In my mind it has a unifying effect rather than a divisive one.
[10] Having determined the question of law in favour of the applicants, the respondent's request for the assessment of its costs will therefore be denied.
Halifax, Nova Scotia
November 26, 2004
François Pilon
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-636-02
STYLE OF CAUSE: Robert J. Richards and
Sandra L. Richards
Applicants
-and-
The Minister of national Revenue
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
PLACE OF ASSESSMENT: Halifax, Nova Scotia
ASSESSMENT OF COSTS -
REASONS BY: François Pilon, Assessment Officer
DATED: November 26, 2004
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
Ottawa, Ontario for the Respondent
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