Date:
20100630
Docket: T-574-09
Citation: 2010 FC 718
BETWEEN:
MANUEL
PIZARRO
Applicant
and
ATTORNEY GENERAL FOR CANADA
and
APPROPRIATE OFFICER "E"
DIVISION OF THE
ROYAL CANADIAN MOUNTED POLICE
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment
Officer
[1]
The
Court allowed with costs this application for judicial review of a decision by
the Commissioner of the Royal Canadian Mounted Police (RCMP) denying the
Applicant’s appeal of an Adjudication Board’s decision directing that the
Applicant resign from the RCMP within 14 days or be dismissed. I issued a
timetable for written disposition of the assessment of the Applicant’s bill of
costs. The Respondents’ reply submissions objected to only two items, i.e. counsel
fee item 15 claimed at the maximum 7 units ($130 per unit) for written argument
permitted by the Court subsequent to the hearing on the significance of a
recent decision of the Federal Court of Appeal, and travel expenses ($1,722.77)
for the Applicant’s two trips from Montreal to Vancouver, first to instruct and
assist counsel in preparation for the hearing and then to attend the hearing
itself. I find the uncontested items of costs reasonable and allow them as
presented.
I. Background
[2]
The
Applicant had been stationed in British Columbia (BC), the site generally of
events underlying this judicial review matter. At one point, he received
administrative leave for temporary relocation to Montreal to complete
his university education. Counsel for the Applicant argued that the sheer
volume of the material to review and discuss with his client for context
required the Applicant to travel to BC for face to face meetings. The impact of
the Commissioner’s decision was not merely the loss of the Applicant’s job, but
also the negative consequences associated with the loss of his career with the
RCMP.
[3]
The
Respondents argued that the minimum 3 units for fee item 15 would be sufficient
as the Applicant required only a four-page supplemental submission on a
single and narrow issue. The Federal Court of Appeal has held that travel
expenses incurred by a party to instruct counsel or to attend a hearing
are not assessable in party and party costs: see Beloit Canada Ltd. v.
Valmet-Dominion Inc., [1991] F.C.J. No. 1080 (F.C.A.) [Beloit Canada]
and Baker Petrolite Corp. v. Canwell Enviro-Industries Ltd. (2002), 23
C.P.R. (4th) 349 (F.C.A. [Baker Petrolite].
The Respondents should not be liable for the costs of the Applicant’s
personal choice to institute this matter in Vancouver and instruct BC counsel
instead of Montreal counsel
close to his place of residence.
II. Assessment
[4]
I
concluded in paragraph 7 of Starlight v. Canada, [2001] F.C.J. No. 1376
(A.O.) that the same point in the ranges throughout the Tariff need not be used
as each fee item for the services of counsel is discrete and must be considered
in its own circumstances. As well, broad distinctions may be required between
an upper versus lower allowance from available ranges.
[5]
The
Applicant’s supplemental submissions after the hearing addressed procedural
fairness, a concept with certain nuances. However, I agree with the
Respondents that these circumstances do not warrant the maximum fee and I
therefore allow 5 units for fee item 15.
[6]
I
considered in paragraphs 141 – 153 of Halford v. Seed Hawk Inc. (2009)
69 C.P.R. (4th) 1, [2006] F.C.J. No. 629 (A.O.) [Halford] the
travel expenses of a client, including the significance of Beloit Canada
and Baker Petrolite, and concluded in paragraph 147 that “travel
disbursements are recoverable for a party as witness at his own discovery and
to testify at trial, but not to attend to give instructions.” The Defendants
there did not claim as does the Applicant here for a separate trip solely to
instruct counsel. In paragraph 178 of Halford above, I disallowed the
travel costs of a member of the board of management of the Defendants on the
basis that there was “nothing to indicate his potential relevance to the
outcome.” I reinforced in paragraphs 213 – 227 and 233 – 241 of Halford
above the preclusion of the travel costs of the client to attend at trial to
instruct counsel, the latter presumably capable and already briefed and
prepared. I considered the national elements of Federal Court practice in
paragraph 30 of Peerless Limited v. Aspen Custom
Trailers et al., 2010 FC 618.
[7]
I
read the respective records of the parties. I would expect that the command
structure of the RCMP would entail some instructions originating with superiors
in Ottawa. Vancouver counsel
appears to have handled this matter for the Respondents throughout. The
solicitor of record for the Applicant is a Kamloops law firm for which the
Applicant’s counsel operates a satellite office in Vancouver. The
Respondents did concede disbursements underlying long-distance communications
between counsel and client.
[8]
The
persons and materials relevant to this matter appeared to be largely situated
in the Lower Mainland, i.e. various medical personnel on both sides, certain
members of “E” Division (the BC Division of the RCMP), Cheri Eklund of the
Member Representative Unit (Pacific) who appeared for him at certain hearings, performance
and disciplinary records and his conviction and sentencing records for
defrauding the Insurance Corporation of British Columbia. There were connections
outside the Lower Mainland, i.e. clinical psychologist based in Montreal or the
President, Regina Area Corporal’s Mess. The Applicant’s counsel may not have
needed direct contact with these various elements, but I simply note that a
significant segment of the record originated in British Columbia.
[9]
My
findings in Halford above, Biovail Corp. v. Canada (Minister of
National Health and Welfare) (2007), 61 C.P.R. (4th) 33,
[2007] F.C.J. No. 1018 (A.O.), aff’d (2008), 64 C.P.R. (4th) 475,
[2008] F.C.J. No. 342 (F.C.) and Abbott Laboratories v. Canada (Minister of
Health) (2008), 66 C.P.R. (4th) 301, [2008] F.C.J. No. 870
(A.O.) [Abbott] set out my views on the threshold of proof for
categories of costs and my approach to their assessment. Paragraphs 68 to 72
inclusive of Abbott above summarize the subjective elements and the
notion of rough justice in assessments of costs. In paragraphs 38 to 40 of Aventis
Pharma Inc. v. Apotex Inc., [2009] F.C.J. No. 56 (A.O.) [Aventis 2009],
I reinforced my view that an assessment of costs should reflect the reality of
the demands of litigation. I endorse the practical approach in paragraph 69 of Merck
& Co. v. Canada (Minister of Health), [2007]
F.C.J. No. 428 (A.O.) aff’d on its point and others, but varied on others [2007]
F.C.J. No. 1337 (F.C.). Paragraph 14 of Merck & Co. v. Apotex Inc.
(2009), 73 C.P.R. (4th) 423, [2008] F.C.J. No. 1656 (F.C.A.) held
that “in view of the limited material available to assessment officers,
determining what expenses are “reasonable” is often likely to do no more than
rough justice between the parties and inevitably involves the exercise of a
substantial degree of discretion on the part of assessment officers.” This
practice of rough justice does not, however, require an assessment officer to
approve any and all claimed items of costs without question. Disallowances or
reductions often occur. I have generally held that a paucity of evidence may
result in conservative allowances.
[10]
This
matter touched on the integrity of and stresses on a law enforcement officer.
The Applicant was raised in Quebec, but the substantive
career events underlying this matter occurred in BC. I accept the rationale for
his first attendance in BC to instruct his counsel. That travel claim consists
of return airfare ($613.46), three-day rental vehicle to and from the lawyer’s
office ($222.19), meals ($103.97) and parking ($20 for which he cannot locate
the receipt) totalling $959.62. Fuel and hotel expenses were not claimed nor
ground transportation to and from the Montreal airport. I allow the
$959.62 claimed.
[11]
The
Applicant had competent counsel. I see nothing in my reading of the record to
support the Respondents having to indemnify the Applicant for his presence at
the hearing of the judicial review either for ongoing instructions or to
observe. I disallow the claimed travel expenses of $763.15.
[12]
The
Applicant’s amended bill of costs, presented at $10,661.13, is assessed and
allowed at $9,606.78.
“Charles
E. Stinson”
Vancouver,
BC
June
30, 2010
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