L'Hirondelle v. The Queen, 2001 FCT 999

Date: 20010907

Docket: T-66-86B

Neutral citation: 2001 FCT 999

BETWEEN:

BRUCE STARLIGHT, suing on his own behalf

and on behalf of all other members of the

Tsuu T'ina Nation

(formerly the Sarcee Indian Band)

Plaintiffs

and

HER MAJESTY THE QUEEN

Defendant

and

NATIVE COUNCIL OF CANADA,

NATIVE COUNCIL OF CANADA (ALBERTA)

and NON-STATUS INDIAN ASSOCIATION OF ALBERTA

Interveners

                                             ASSESSMENT OF COSTS - REASONS

CHARLES E. STINSON

Assessment Officer

[1]              The Plaintiffs moved to terminate or limit the participation of the Intervener, Native Counsel of Canada (Alberta) (hereinafter the Intervener) in this matter. By Order dated May 26, 2000, the Court dismissed the motion with costs to the Intervener "including counsel's travel and living expenses payable in any event of the cause". The Intervener filed this bill of costs:

... DISBURSEMENTS INCURRED:

The Plaintiffs' Position

[2]              The Plaintiffs argued that these costs should not be assessed until the Federal Court of Appeal has addressed the outstanding appeal of the Order. The Plaintiffs argued that there was no evidence to justify the maximum in the range claimed for each item. As well, there was no evidence as required by Tariff B1(2) to support the number of hours claimed for item 6. The Plaintiffs argued that only one-half of the counsel fees claimed should be assessed because the motion was addressed with an identical motion in T-66-86A (Bertha L'Hirondelle at al. v. The Queen) by means of a single argument and attendance in respect of both motions.

[3]              The Plaintiffs argued that there is no evidence as required by the Tariff of the reasonableness of the disbursements or that they were made or payable. The Plaintiffs argued that the evidence does not disclose the breakdown of the hotel charge and its manner of calculation. The travel itinerary refers to May 24 and 26 as check-in and check-out dates, but there is no evidence that these were the actual dates. The Plaintiffs noted a credit card slip showing the charge was made on May 27 and argued that only two nights accommodation, not three, were necessary. The Plaintiffs argued that some $2,600.00 for airfare is excessive given that the hearing dates had been scheduled far enough in advance to permit faresavers. The Plaintiffs argued that allowing reimbursement for meals for counsel in travel status is not the normal practice, should not be encouraged and argued further that such costs are unreasonable given that counsel would have had to eat no matter where he was.

The Intervener's Position

[4]              The Intervener argued that the appeal does not act as a stay and there is no reason to delay the assessment. The Intervener argued that the bill of costs was prepared consistent with that submitted by the Intervener, Non-Status Indian Association of Alberta, and it should be assessed in a similar manner. The Intervener argued that the importance and complexity of the litigation in general and this motion in particular, seeking to radically limit its participation in a case with which it had been involved since 1989, justified the maximum in the ranges. The Intervener acknowledged that there had been a single appearance and argument, but asserted that the extra work to address two separate proceedings and a notice of motion filed in each justifies two full sets of costs. If not, there should be at least one full set of costs and one-half of the second for a total of 49 units. The Intervener argued that the Plaintiffs' position does not challenge the accuracy of the hours claimed for item 6. If there is any doubt, the Court Registrar's record should establish the length of the hearing. The Intervener noted that the maximum was claimed for item 24 to reflect the requirement for travel between Edmonton and Toronto for the hearing.

[5]              The Intervener argued that the travel disbursements were reasonable and necessary given that the Plaintiffs brought the motion and the Court determined the venue. The Intervener noted that, contrary to the Plaintiffs' assertion, the supporting affidavit confirms that the disbursements were actually incurred. The Intervener noted that the credit card summary sheet was the only available evidence for the hotel charges which in fact were for May 24 and 25 only. The Intervener argued that the history in this litigation of frequent changes of hearing dates made it prudent to use a fully changeable and refundable airline ticket. The Intervener argued that counsel would not have had to eat in a restaurant if he had been at home and that there is no reason to exclude a recognized cost of travel such as meals.

Assessment

[6]              Generally, this action raises important issues relative to the Indian Act. Its history has been difficult and includes an appeal from the trial judgment having been allowed on the limited basis that the trial judge had demonstrated grounds for reasonable apprehension of bias; an order for a new trial and an order creating two actions where previously there had been one. The new trial has not yet occurred. These motions were clearly interlocutory. As this phrase in the Order, "costs ... in any event of the cause", does not equate to the "forthwith" provision analysed in my Reasons dated May 21, 1999 in T-2647-97: Nature's Path Foods Inc. v. Country Fresh Enterprises Inc. et al., I should consider allowing the Plaintiffs' preliminary objection, that the assessment is premature. However, paragraph [17] of the Court's Reasons comments negatively on the propriety of both motions and twice states that costs will be payable forthwith. I will proceed with the assessment consistent with my understanding of the Court's intent.

[7]              The structure of the Tariff embodies partial indemnity by a listing of discrete services of counsel in the course of litigation, not necessarily exhaustive. The Rules are designed to crystallize the pertinent issues and eliminate extraneous issues. For example, the pleading and discovery stages may involve a complex framing and synthesizing of issues leaving relatively straightforward issues for trial. Therefore, each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation. If items are a function of a number of hours, the same unit value need not be allowed for each hour particularly if the characteristics of the hearing vary throughout its duration. In this bill of costs, the lower end of the range for item 5 and the upper end of the range for item 6 are possible results. Some items with limited ranges, such as item 14, required general distinctions between an upper and lower assignment in the range for the service rendered.

[8]              The notice of motion bears the style of cause for T-66-86B and addresses all Interveners. The Reasons for Order dated May 31, 2000 bear the style of cause for both T-66-86B and T-66-86A and at paragraph [1] confirm that there was an identical motion in T-66-86A. Paragraph [17] of the Court's Reasons contemplates costs for the Interveners relative to both motions. The Order for costs bears the style of cause for both actions and refers to a single motion, but I think the intent was costs for each Intervener for each motion in each action. The bill of costs bears the style of cause for T-66-86B, refers to a single motion and does not refer to T-66-86A except by implication, i.e. the doubling of fees comprising one set of fees for T-66-86B and an identical set for T-66-86A. The intervener, Non-Status Indian Association of Canada, apparently presented a bill of costs using a similar approach in T-66-86A. The result at assessment was as if there had been a single appearance and argument. I think the same result is appropriate here.

[9]              These motions were critical for the Intervener. I allow the maximum units as presented for items 5 and 6, including the use of 7 hours duration which is consistent with Court records. My Reasons on January 12, 2000 in T-1459-97: ITV Technologies, Inc. v. WIC Television Ltd. and on April 13, 2000 in T-1677-79 et al.: Grant Wilson v. The Queen held that, in the context of Rule 2 defining "assessment officer", I do not exercise the "discretion of the Court" to authorize item 24 in the first instance, but I can allow the associated travel disbursements. The terms travel and living expenses ordinarily refer to disbursements and I cannot usurp the Court's authority under Rule 400(1). Given the direct language of the Court concerning the suitability of the motions, the fact that the Intervener did not claim for all possible items, such as item 26, and that the Plaintiffs objected only to the maximum in ranges, I allow item 24, but at 1 unit in the circumstances.

[10]            My Reasons in Carlile v. The Queen, 97 D.T.C. 5284 noted that the proof for costs is often less than absolute, but that a result of nil dollars on assessment is absurd when expenses were obviously necessary and incurred. The travel itinerary confirms the hotel rate as $209.00 per night for two nights. The addition of taxes would not account for the total of $614.02 claimed. My guess is that the $614.02 may include charges such as dry-cleaning, meals etcetera. I allow a reduced amount of $470.00 inclusive of my estimate for taxes. Given potential fluctuations in hearing schedules, economy fares continue to be standard. I allow $2,644.71 as presented. I allow the ground transportation expenses of $43.00 and $38.40 as presented. The venue precluded counsel from access to his ordinary source for meals. There is no principle of costs that requires counsel to assume costs which he would not ordinarily have incurred, but for his client's litigation. I allow a reduced amount of $135.00 in the circumstances.

[11]             The costs of the Intervener, presented at $10,563.23, are assessed and allowed at $6,434.11.

(Sgd.) "Charles E. Stinson"                   Assessment Officer

Vancouver, British Columbia

September 7, 2001

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-66-86B

STYLE OF CAUSE:                          Bruce Starlight et al. v. Her Majesty The Queen

DATE OF HEARING:                        Assessment in writing without personal appearance of the parties

ASSESSMENT OF COSTS - REASONS BY: CHARLES E. STINSON

DATED:                                                 September 7, 2001

SOLICITORS OF RECORD: