Aucoin v. Canada, 2002 FCT 29

Date: 20020110

Docket: T-662-01

Citation: 2002FCT29

BETWEEN:

                                                   HELIODORE AUCOIN and Others

                                                                                                                                                      Applicants

                                                                              - and -

                                              HER MAJESTY THE QUEEN and Others                      Respondents

                                               ASSESSMENT OF COSTS - REASONS

FRANÇOIS PILON

Assessment Officer

[1]         This application for judicial review was allowed, setting aside the decision of the Minister of Fisheries and Oceans. In the Reasons for Order rendered on July 17, 2001 the Court wrote at paragraph 51:

"In judicial review the awarding of costs is discretionary. In light of the circumstances of this application, I am prepared to entertain submissions by the applicants with respect to an award of costs."

[2]         Further to the filing of written submissions by parties an Order for costs was rendered on September 5, 2001 in the following terms:

[1]      "Having reviewed the submissions of the applicants and respondent Minister with respect to costs, and in light of my findings with respect to the conduct of the Minister's officials, as set out in my decision dated July 17, 2001, I am satisfied that an award of costs is warranted.

[2]      In reaching this conclusion I have also taken into account the factors set out in Rule 400 of the Federal Court Rules, namely the result of the proceeding, the amount of work involved and particularly the failure of the Crown to admit anything.

[3]      The Crown concedes and I agree that the amount of $11,875.00 as submitted by the applicants is appropriate. I do not accept the Crown's submissions that the costs should be shared by the other respondents."

[3]         The solicitor for the applicants, Mr. Danys Delaquis, filed a bill of costs on November 28, 2001 claiming the amount of $11,875.00 for assessable services (as fixed by the Court) as well as an additional amount of $8,881.86 for disbursements and requested that the assessment take place by telephone conference. The assessment took place on December 10, 200l with the applicants' solicitor and Ms. Ginette Mazerolle acting on behalf of the respondent. Mr. Delaquis served and filed further written submissions on December 12, 2001. Ms. Mazerolle advised the Registry on January 7, 2002 that she would not be filing a response.

[4]         The preliminary issue to be determined is whether or not the applicants have the right to assess disbursements separately. Or, to put it another way, was the award of costs in the fixed amount of $11,875.00 inclusive of assessable services and disbursements? The applicants are of the view that the Order for costs was only meant as compensation for their services and that disbursements would be assessed later, thus the filing of their bill of costs. On the other hand, the respondent's position is that the award of costs was like a lump sum covering disbursements as well.

[5]         Upon hindsight, I think it would have been preferable for a party to have filed a notice of motion under Rule 397 (1) (b) requesting a clarification from the Presiding Judge. However, this issue only came up at the assessment. In the circumstances the assessment officer will decide the matter on the facts of the case and upon the arguments of counsel.

[6]         Mr. Delaquis' main arguments may be summed up as follows:

a)    the conduct of certain officials of the Minister amounted to bad faith and forms the basis for increased costs;

b)    In the Province of New Brunswick the provisions of the Rules regarding costs make it clear that disbursements always follow the event and he quotes Rule 59.08(8):

"Unless ordered otherwise, a party who is entitled to his costs or a proportion of his costs is entitled on the same basis to his disbursements assessed in accordance with Tariff (D)" and

c)    the provisions of Rules 400 (4) and 407 apply; the Court made a separate award of costs in addition to any assessed costs (emphasized by counsel).

[7]         In response Ms. Mazerolle argues that:

a)    the order for costs does not mention disbursements; therefore one must assume that these were included in the order for costs;

b)    it is much simpler for parties to have an amount fixed by the Court instead of having to go through a full assessment and

c)     if the Court had ordered costs to be assessed under Tariff B the amount for assessable services that the applicants could recover at the highest level of Column III would be approximately $3,000 and $5,000 at the highest level of Column V. The respondent argues that the Court has already allowed the amount of $11,875 as total compensation for its costs and that it would not be fair for the applicants to claim an additional sum of $8,881.86. In Ms. Mazerolle's opinion this would be clearly unreasonable and would amount to the granting punitive damages.

                                                                      My Conclusions

[8]         In my view the Order for costs was probably meant to include assessable services as well as disbursements. After hearing the arguments of counsel it is perfectly understandable why each party gave opposite interpretations to that Order. However, I find the position of the respondent more persuasive for the following reasons:

[9]         I do not agree with the applicant's argument that Rule 59.08(8) regarding costs assessed in the Province of New Brunswick applies here. The Federal Court Rules are applicable in this matter. Rule 400 (4) provides that:

"The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs."

The Order for costs does not, in my respectful opinion, indicate the specific items (services only or services and disbursements) it is intended to cover to indemnify the applicants. I am aware of several other previous decisions of the Federal Court where Orders for costs are explicit such as:

"the action is dismissed with costs fixed at $xxxxx, inclusive of disbursements" or " the Court awards taxable fees plus disbursements."

[10]          With respect to the concept of punitive damages as these relate to costs parties are referred to the following decision. In —Satellite Earth Station Technology Inc. v. Canada", 50 F.T.R. 4, Mr. Justice MacKay had this to say:

"Costs must be related to the costs incurred in proceedings before the Court; they are not akin to damages for alleged loss or wrongful conduct."

[11]       I agree with the respondent that costs assessed under Tariff B would have produced amounts varying from $3,000 to $5,000 for assessable services, thus leaving a balance of either $6,800 or $8,800 to indemnify the applicants for their disbursements. I think this common sense approach is most compatible with the Order for costs. Parties are reminded of the well-established principle of partial indemnity; costs recovered are not meant to be in full. In Wellcome Foundation Ltd. v. Apotex, (1992), 40 C.P.R. (3^rd) 376, Mr. Justice MacKay wrote:

"In the exercise of discretion in relation to directions to a taxing officer, my colleagues have recognized certain general principles. Included among these are that parties cannot expect to recover all their costs under the tariff relating to a party-and-party costs and that exorbitant increases over the tariff items should be countenanced, for the Court should not interfere lightly with the rules relating to sums intended to be allowed on a party-and-party basis."

[12]      In my view the award of $11,875.00 was reasonable and fair in the circumstances. In Apotex Inc. v. Wellcome Foundation Ltd. DRS 99-02429, Mr. Justice Wetston held:

"An important principle underlying costs is that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party. Tariff B is formulated so as to reflect the philosophy that party and party costs should bear a reasonable relationship to the actual costs of litigation."

[13]       Finally, Mark Orkin in his book The Law of Costs (1968) at page 15 has defined the word "costs" as follows:

"the expression "costs" refers to the total of fees and disbursements"

[14]       In the absence of Directions from the Court the Order for costs in the particular circumstances of this case is, in my opinion, all inclusive. The applicants' bill of costs will therefore be assessed and allowed in the amount of $11,875 (as ordered by the Court). The further amount of $8,881.86, claimed for disbursements is disallowed. A certificate of assessment will issue accordingly.

Halifax, Nova Scotia                                                                                                        

January 10, 2002                                                                                      François Pilon

Assessment Officer