Willier v. Sucker Creek Indian Band #150A, 2002 FCT 192

Date: 20020222

Docket: T-57-01

Neutral citation: 2002 FCT 192

BETWEEN:

                                                              RAYMOND WILLIER

                                                                                                                                                       Applicant

                                                                                 and

           SUCKER CREEK INDIAN BAND #150A also known as the SUCKER CREEK

             FIRST NATION, ALVIN CARDINAL, RUSSELL L. WILLIER, RONALD I.

           WILLIER, JOHN L. WILLIER, BEATRICE WRIGHT, NORMAN CALLIOU,

                 RODERICK WILLIER, BARBARA OKEMOW, PAULINE OMINIYAK,

                                              MILES RUMLEY and KEN CARDINAL

                                                                                                                                               Respondents

                                           REASONS FOR AN ORDER AS TO COSTS

GIBSON J.:

INTRODUCTION

[1]                 The following paragraphs are extracted from reasons dated the 3^rd of December, 2001 in which I granted substantive relief to the applicant on this application for judicial review^[1]:

[1]           These reasons arise out of an application for judicial review in which the decision or decisions in respect of which review is sought is or are described in the following terms:

...in respect of the election held by the Respondent Sucker Creek Indian Band #150A on November, 28, 2000 (the"election"), the results of the election, and the failure of the Respondents to conduct an appeal of the election, pursuant to sections 12 through 12.9 of the Customary Election Regulations of the Sucker Creek First Nation #150A. Judicial review is sought of the continuing acts and decisions made with respect to the conduct of the election, from the beginning of the election process until notice was given that an Election Appeal Committee would not be formed on December 18, 2000.

[2]            At the opening of the hearing before me, counsel for the applicant indicated that the scope of the judicial review sought would be narrowed to only encompass judicial review of the notice, given on the 18^th of December, 2000, that an Election Appeal Committee would not be formed. Counsel further indicated that the relief sought would be a declaration that the Election Appeal Period provided for in the Customary Election Regulations of the Sucker Creek First Nation #150A had not expired and that the Electoral Officer appointed in relation to the election held on the 28^th of November, 2000 remained in office, and an Order setting aside the decision under review and referring the question of appointment of an Election Appeal Committee back to the Electoral Officer for redetermination in accordance with law and such directions as this Court considers appropriate.

[2]                 In the same reasons, I described the issues before me in the following terms:

[8]           The issues which arise on this application for judicial review as redefined at the hearing before me are the following: first, whether the Electoral Officer erred in deciding as she did, as reflected in the decision under review that is in part quoted above [the decision by the Electoral Officer that she was unable to form, and therefore would not be forming, an Election Appeal Committee]; second, whether the Electoral Officer is functus; and third, whether the relief as proposed and reflected earlier in these reasons is illusory in that, at this date, no Election Appeal Committee could be formed in compliance with the Election Regulations.

[3]                 In the order granting substantive relief to the applicant, I reserved on the issue of costs and provided that costs would be dealt with by a supplementary order following receipt of submissions, since the issue was not addressed at the hearing of the application for judicial review. I have now received and fully reviewed the parties' written submissions as to costs. In the result, these reasons and a related order issue.

POSITIONS OF THE PARTIES

[4]                 Counsel for the applicant, by reference to a number of the factors listed in Rule 400(3) of the Federal Court Rules, 1998^[2] (the "Rules") and the background to and the history of this application, urges that the applicant should be indemnified for his legal expenses on a solicitor and his own client basis, either in whole or in part. In the alternative, counsel urges that the applicant should be awarded his costs on a basis "...above and beyond the default tariff prescribed by Rule 407, on a tariff level or in a lump sum as deemed just by [the Court]". Counsel further urges that costs awarded in favour of the applicant should be borne by the Sucker Creek Indian Band #150A also know as the Sucker Creek First Nation (the "First Nation").

[5]                 Counsel for the respondent Chief Alvin Cardinal ("Chief Cardinal"), on the basis of many of the same considerations relied upon by the applicant, urges that costs should not be awarded in favour of the applicant or, in the alternative, "...the Applicant should only receive the costs of the actual application."

[6]                 Counsel for Norman Calliou, Roderick Willier, Barbara Okemow, Pauline Ominiyak, Miles Rumley and Ken Cardinal (the "Calliou respondents") urges that costs ought not to be awarded to the applicant on the ground that "...much of the complexity and additional work [on this application for judicial review] was created by a manner in which the Applicant framed [his] initial application and that the application was substantially different from that contained in the record ...". In the alternative, counsel for the Calliou respondents urges that the applicant should receive only those costs as against the Calliou respondents for the "...actual judicial review hearing...", on the ordinary scale, and that no award of costs should be made against the Calliou respondents for motions brought in the course of this application for judicial review.

[7]                 Counsel for the respondents Russel L. Willier, Ronald I. Willier and John L. Willier (the "Willier respondents") who, at the early stages of the application for judicial review, represented themselves and were represented by counsel only at a dispute resolution conference and at the hearing before me where they supported the position of the applicant and the modified relief sought by him, urges that his clients "...ought to be indemnified on a solicitor-client basis by way of either a lump sum or by way of an award of costs on a solicitor-client basis."

[8]                 Neither the First Nation nor the respondent Beatrice Wright took any part in the application for judicial review. No submissions as to costs were provided by either of them.

GENERAL PRINCIPLES

[9]                 Rules 400 to 422 deal with the issue of costs on applications for judicial review as well as in relation to actions. Rule 400(1) provides that the Court has full discretionary power over the amount and allocation of costs and the determination by whom they are to be paid. Rule 400(3) provides an extensive list of factors that may be considered in the exercise of the Court's discretion. Rule 407 provides that, unless the Court orders otherwise, party-and-party costs are to be assessed in accordance with column III of the table to Tariff B of the Rules.

[10]            While the Court has full discretionary power to determine by whom costs are to be paid, with costs normally following the event, the Court's discretion must be exercised in a judicial manner, in accordance with established precedent and practice.

[11]            Against the foregoing, costs on this application for judicial review would normally go in favour of the applicant against all named respondents. However, a range of case specific factors are here at play on the particular background and history of this matter. I turn then, to consideration of those factors.

FACTORS SPECIFIC TO THIS APPLICATION FOR JUDICIAL REVIEW

            a)        As between the applicant and the First Nation, Chief Cardinal and the Calliou respondents

[12]            In terms of the issues before me at the hearing of the application for judicial review, the applicant was substantially successful.

[13]            I am satisfied that the issues, from the point of view of all members of the First Nation, are of significant importance. They relate directly to the integrity of the First Nation's processes for the election of Chief and Council and more particularly to the integrity of the appeal process where voter-members of the First Nation are concerned that the election process was flawed.

[14]            The complexity of the issues is more difficult to assess. I am satisfied that the issues, as they came before me at the hearing of the application for judicial review, were not particularly complex. By contrast, the complexity of the issues identified in the application for judicial review itself, and, as a result, the complexity of the issues faced prior to the hearing of the application, was substantial. Only the applicant can be said to be responsible for the initial and ongoing complexity of the application, up to the point of commencement of the judicial review hearing. While it might be argued that, during the course of the application up to the point of hearing, the First Nation, Chief Cardinal and the Calliou respondents might have inferred that the issues were not really as complex as presented, and I will have more to say about this in the context of review of an alleged offer to settle, the relative simplicity of the issues was not made apparent on the public record to those respondents and to the Court until the last possible moment.

[15]            Following determination of questions of liability and the relief to be granted on this application for judicial review, counsel for the applicant disclosed to the Court an alleged offer to settle this matter made by him on behalf of the applicant. In his Memorandum of Fact and Law on Costs, counsel wrote:

It is respectfully submitted that since the general motion sitting of March 29^th, 2001, Raymond Willier, through his counsel, has been willing and has expressed his willingness both in writing and orally to resolve this matter by agreeing to have a retired Judge stand in the place of the election appeal committee for the purposes of hearing and conducting the appeal of the election, but for the appeal to otherwise be held under the Election Regulations. This position on settlement has remained constant up to and including the hearing of this Application, and was expressed as a desired form of relief at the hearing of the Application.

It is respectfully submitted that this offer and position taken by Raymond Willier was a compromise from his rights and entitlements under the Election Regulations. The offer was intended to solve the difficulties expressed by the Tribunal in finding sufficient qualified and unbiased members for the election appeal committee. The offer was also intended to satisfy the concerns raised by counsel for Alvin Cardinal at the hearing of the Application respecting the complexity of the matters that would be before the election appeal committee, as it is submitted that the parties could agree to a retired Alberta Judge who would be qualified to hear and decide such complex issues.

It is respectfully submitted that the Order ultimately granted by this Honourable Court was superior to Raymond Willier's offer, as it did not reflect a compromise, and it provided for an appeal to be heard by his peers in his community, to which he always claimed right and entitlement. Therefore it is respectfully submitted that Rule 420 of the Federal Court Rules is triggered, and the consequences of subsection 2 should apply against the Respondents refusing the offer.

Rule 420(1) reads as follows:

420. (1) Unless otherwise ordered by the Court, where a plaintiff makes a written offer to settle that is not revoked, and obtains a judgment as favourable or more favourable than the terms of the offer to settle, the plaintiff shall be entitled to party-and-party costs to the date of service of the offer and double such costs, excluding disbursements, after that date.

420. (1) Sauf ordonnance contraire de la Cour, le demandeur qui présente par écrit une offre de règlement qui n'est pas révoquée et qui obtient un jugement aussi avantageux ou plus avantageux que les conditions de l'offre a droit aux dépens partie-partie jusqu'à la date de signification de l'offre et, par la suite, au double de ces dépens, à l'exclusion des débours.

Rule 420(2), as referred to in counsel's submissions quoted above is, I am satisfied, irrelevant. That Rule relates to a written offer to settle made by a defendant or, on an application such as this, a respondent.

[16]            The materials submitted by counsel for the applicant on the issue of costs include certain documentary evidence, one element of which is described as "Settlement" correspondence of April 19^th, 2001. I have reviewed all of the documentary evidence provided. I conclude that it simply does not reflect an unrevoked written offer to settle as contemplated by Rule 420(1). In the circumstances, the applicant cannot rely upon that Rule or on the reference in Rule 400(3)(e) to a written offer to settle as a factor to be considered in relation to the question of costs.

[17]            There can be no doubt that this application for judicial review involved a significant amount of work on the part of counsel and their clients. A substantial amount of that work can be attributed to the complexity of the application for judicial review as originally framed by the applicant. Additional considerations are a number of interlocutory motions brought on behalf of Chief Cardinal but those motions themselves can generally be said to be consequential on the manner in which the application for judicial review was framed.

[18]            Interrelated with the importance of the issues is the public interest, within and beyond the First Nation itself, in ensuring an effective and credible process for election of Chief and Council. I am satisfied that this application for judicial review is directly related to ensuring the maintenance of that public interest.

[19]            Both the applicant and Chief Cardinal bear some responsibility for the time that it took to bring this judicial review to a determination and the further time that it will take to achieve a disposition of an appeal of my substantive decision filed on behalf of Chief Cardinal.

[20]            I am not satisfied that any step in this application for judicial review was improper, vexatious or unnecessary, or was taken through negligence, mistake or excessive caution.

[21]            I am satisfied that, as between the applicant and Chief Cardinal and the Calliou respondents, only one set of costs is warranted. More will be said shortly in these reasons regarding costs of the Willier respondents.

[22]            While the Sucker Creek First Nation itself took no part in these proceedings, the dispute turned on issues of significant importance to all members of the First Nation. Conflicting viewpoints from within the First Nation were represented by the applicant and the Willier respondents on the one part, and by Chief Cardinal and the Calliou respondents on the other. I am satisfied that the resolution of the dispute will be in the interest of the First Nation as a whole and in the result, that this is a significant factor in determining the liability of the First Nation for costs, notwithstanding its lack of direct participation.

[23]            Taking into account the general principles governing awards of costs and the above briefly considered factors, I conclude that the applicant should be awarded its costs against the First Nation, Chief Cardinal and the Calliou respondents, on a joint and several basis, on the ordinary scale as described in Rule 407.

            b)         As between the Willier respondents and the First Nation, Chief Cardinal and the Calliou respondents

[24]            Each of the Willer respondents, like the applicant, filed an appeal of the results of the election that is at issue. As a result, they had an interest in common with that of the applicant. I am satisfied that they were properly named as respondents as they are persons "directly affected by the Order sought in the application,"... as provided in Rule 303(1)(a).

[25]            In the early stages of the application, the Willier respondents were self represented and played a relatively insignificant role. Later, they retained counsel who represented them at a dispute resolution conference and at the hearing of the application for judicial review, albeit that no memorandum of argument on the application for judicial review was filed on their behalf. The interventions of their counsel at the hearing before me were succinct and effective and contributed to the ultimate result.

[26]            Taking into account the considerations reflected earlier in these reasons, I am satisfied that the Willier respondents are entitled to an order of costs, jointly and severally against the First Nation, Chief Cardinal and the Calliou respondents, calculated in accordance with column V of the table to Tariff B to the Rules. The principle factors contributing to the higher award of costs to the Willier respondents are their reluctance to become embroiled in the complexity of the whole matter at its early stages, their succinct and effective contribution at the hearing before me and their apparent minimization of their costs.

c)         As regards the respondent Beatrice Wright

[27]            As earlier indicated in these reasons, Beatrice Wright took no part in this application for judicial review. There will be no order as to costs for or against Beatrice Wright.

            d)         As regards the Electoral Officer, the "tribunal" whose decision is under review

[28]            A tribunal whose decision is under review is not a proper responding party on an application for judicial review.^[3] While the Court has jurisdiction to award costs against a person who is not a party to a proceeding^[4], I am satisfied that it is appropriate to do so only in very unusual circumstances and that such circumstances are not present on the facts of this matter.

            e)         Assessment

[29]            In the event that the parties are unable to agree on the quantum of costs that will be provided for in accordance with these reasons, such costs shall be assessed in the ordinary manner.

CONCLUSION

[30]            In the result, an Order as to costs will go as provided in these reasons.

________________________________

J. F.C.C.

Ottawa, Ontario                                                                    

February 22, 2002