Date:
20100513
Docket: T-1492-04
Citation: 2010 FC 526
BETWEEN:
CHIEF ROBERT SAM, COUNCILLOR
NICK ALBANY
COUNCILLOR NORMAN GEORGE, COUNCILLOR
FRANK E. GEORGE COUNCILLOR JOHN R. RICE on their own behalf as
COUNCIL OF THE SONGHEES INDIAN BAND and
on behalf of the
SONGHEES INDIAN BAND
Applicants
and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT,
THE SUPERINTENDENT FOR THE SONGHEES
INDIAN BAND,
SYLVIA ANN JOSEPH, ALICE LARGE, ESTATE OF IRENE COOPER
by her Administrators HARVEY GEORGE,
CHARLOTTE THOMPSON
and WILLIAM GOSSE and HARVEY GEORGE,
CHARLOTTE THOMPSON
and WILLIAM GOSSE
Respondents
ASSESSMENT OF
COSTS – REASONS
Charles
E. Stinson
Assessment Officer
[1]
The
Court dismissed with costs this application for judicial review of a decision
of the Minister of Indian Affairs and Northern Development (the Minister)
approving the sale of nine lots in the New Songhees Indian Reserve No. 1A. I
issued a timetable for written disposition of the bill of costs of the Minister
and the Superintendent for the Songhees Indian Band (the Crown Respondents).
[2]
The
Applicants argued further to several factors in Rule 400(3) that Rule 400(5)
should be applied to restrict the Crown Respondents to the higher range of
Column I. These factors included novel and important but simple issues of title
important to all native people and equities indicating that the Department of
Indian Affairs and Northern Development (DIAND) had failed in its duties
generally. The Crown Respondents correctly noted that Rule 400(5) jurisdiction
to fix a column is reserved to the Court and not to an assessment officer.
[3]
The
Applicants advanced a similar argument before me concerning the assessment of
the bill of costs of the Respondents, Estate of Irene Cooper by her Administrators
Harvey George, Charlotte Thompson and William Gosse and Harvey George,
Charlotte Thompson and William Gosse (the Estate Respondents). I concluded in
paragraph 2 of my decision reported at Songhees Indian Band v. Canada (Minister of
Indian Affairs and Northern Development), [2007] F.C.J. No. 1424
(A.O.) (the Estate Assessment) that:
The
Applicants’ materials presumed that an assessment officer can exercise
jurisdiction under Rule 400(5) which provides that the Court can specify a
Column in Tariff B to use for costs. The Applicants argued that, as the
judgment did not specify which Column to use, the assessment officer should
apply Rule 400(3)(c) (importance and complexity of issues, (d) (apportionment
of liability), (g) (amount of work) and (h) (public interest) to set low Column
II amounts for counsel fees. The Estate Respondents correctly pointed out that
Rule 407 specifies Column III unless the Court directs otherwise. I have
therefore considered the Applicants’ materials as an argument for minimum
Column III amounts.
The available maximum values in Column I
range approximate to the available minimum values in Column III ranges. I have
similarly taken the Applicants’ materials as an argument for minimum Column III
counsel fees in the Crown Respondents’ bill of costs.
I. Assessment of Counsel Fees
[4]
The
Applicants’ materials, focused as they were on a Column I result, did not
analyse individual counsel fee items. Paragraph 6 of the Estate Assessment set
out certain principles, i.e. “the same point in the ranges throughout…
need not be used as each item for the services of counsel is discrete and must
be considered in its own circumstances… broad distinctions may be required
between an upper versus lower allowance from available ranges.” Having again
read the respective application records of the Crown Respondents and of the
Estate Respondents, I would not vary my conclusions in paragraph 8 of the
Estate Assessment indicating the difficulties of this litigation.
[5]
The
Crown Respondents’ bill of costs claims maximum counsel fees throughout. The Crown
Respondents argued that this litigation raised four discrete issues of above
average importance and complexity, and which were novel and national in scope.
I agree and allow the maximum 7 units ($120 per unit) claimed for fee item 2
(respondent’s record). There were several amendments to the instituting
document some of which were the subject of interlocutory applications. I allow
the maximum 6 units for fee item 3 (amendment prompted by amended
originating document).
[6]
The
Crown Respondents claimed fee item 5 (preparation for a contested motion /
available range 3 – 7 units) five times and fee item 6 (appearance on a motion
/ available range 1 – 3 units per hour) three times. The Court on December
15, 2004 allowed the Crown Respondents’ application for an injunction
preventing payment of the sale proceeds held in trust until after disposition
of this judicial review, but directed that there be no costs of the motion. The
court file is voluminous: I cannot find any appeal of or change to that
result for costs. The Applicants’ submissions were of minimal assistance in
this assessment of costs, but I have taken them as general opposition to items
of costs outside the limits of an award of costs. An interlocutory order silent
on costs means that the hearing judge (for the judicial review) is not
specifically vested with jurisdiction to decide or vary costs of the motion
associated with the interlocutory order: see para. 73 of Abbott Laboratories
v. Canada (Minister of
Health)
(2008), 66 C.P.R. (4th) 301. [2008] F.C.J. No. 870 (A.O.) [Abbott]
and para. 26 of Fournier Pharma Inc. v. Canada (Minister of
Health),
[2008] F.C.J. No. 1151 (A.O.). That is, a consent judgment or otherwise on
the substantive merits of litigation cannot purport to vary interlocutory
awards of costs unless the latter contained express provisions to so permit. I
disallow these claimed counsel fees and any associated disbursements (the allowance
below, for example, for photocopies addresses the latter although the
Applicants did not specifically raise it as a concern). For similar reasons,
the Crown Respondents’ claim for fee item 5 for a written application to extend
time to file affidavits is disallowed because the resultant September 23, 2005
order was silent on costs.
[7]
A
lengthy order dated June 15, 2005, addressing various heads of relief including
leave to amend the instituting document, directed that the Applicants pay costs
to the Crown Respondents. I allow 6 units and 3 units per hour respectively
for the Crown Respondents’ fee item 5 and 6 claims. Both sides appealed. The Crown
Respondents claim a fee item 5 for each appeal, but a single fee item 6 for the
hearing of the appeals. The Court issued respective orders on October 28,
2005 dismissing the appeal motions and directed in each that there “is no order
as to costs.” As above, I can find no variance or appeal of that result
and therefore as above I disallow the claimed costs.
[8]
The
Crown Respondents claimed fee item 7 (discovery of documents, including
listing, affidavit and inspection), work which I would associate with an
action as opposed to a judicial review. The Applicants’ materials were of
no assistance. In circumstances of tenuous arguability or not of given
items, i.e. International Taekwon-Do Federation v. Choi, [2008] F.C.J.
No. 1402 (A.O.), I have allowed certain items and not others. In the
circumstances here, I allow the minimum 2 units.
[9]
Similar
to my approach in Notice of Compliance matters, i.e. para. 37 of Astrazeneca
AB v. Apotex Inc., [2009] F.C.J. No. 1019 (A.O.) [Astrazeneca],
I read in addition to the decision itself various records and transcripts to
gauge the work required to advance the positions of the parties as this
litigation unfolded. For example, paragraph 3 of the affidavit of Jacques
Desrochers sworn October 20, 2005 in support of the Crown Respondents’ stated
that its purpose was “to provide a historical review of the development of the
Reserve Land Register, and a description of its current activities and procedures.”
I have not necessarily agreed in the past that the demands on counsel appearing
at the cross-examination of one’s own witness are always less than those for
cross-examination of an adverse witness. The respective demands can be
different. The transcript of the cross-examination on December 7, 2005 of Mr.
Desrochers on his affidavit reveals several interjections by the Crown
Respondents’ counsel which were not frivolous but rather shaped to protect the Crown
Respondents’ position, i.e. to clarify questions (pages 6 or 13-15); to
reword a question (page 17); to preclude questions restricted by a previous
order (pages 18-19) or to object to questions allegedly beyond the permitted
scope of cross-examination (pages 25-26). I allow the maximum units claimed
under fee items 8 (preparation for cross-examination of affiants / available
range = 2 – 5 units) and 9 (attendance on cross-examination of affiant /
available range 0 – 3 units per hour) for Mr. Desrochers.
[10]
For
the Applicants’ affiant, Chief Robert Sam, I allow 4 units and 2 units per hour
respectively for fee items 8 and 9. Sherry Evans, a Policy and Issues Analyst
for DIAND and later a lawyer, swore two affidavits on behalf of the
Crown Respondents. Her responsibilities included the development, analysis and
regional implementation of national DIAND policies relating to the
administration of the estates provisions of the Indian Act, R.S.C. 1985,
c. I-5 and the organization of the sale of the subject lots. I allow 5 and
3 units respectively for the fee items 8 claimed for her two affidavits. I
allow the maximum 3 units per hour under fee item 9 for her.
[11]
David
Gill was a lawyer with the Department of Justice who swore two affidavits on
behalf of the Crown Respondents concerning the administrative process
contemplated by the Indian Act, s. 50(4) (approval of the sale by the
Minister), the Songhees Indian Band’s expectation of a meeting with the Minister
and certain historical context. Page 2 of the transcript of the
cross-examination on his affidavits on January 21, 2005, indicated that he gave
“legal advice to the superintendent and…to the minister whose approval is
necessary under section 50(4)” and includes exchanges (pages 2-3) on the limits
of his answers relative to solicitor-client privilege. I find that the role of
supervising counsel during this cross-examination was straightforward. I allow
3 and 2 units respectively for the fee item 8 claimed for each of his two
affidavits and 2 units per hour for the single fee item 9 claimed.
[12]
The
Crown Respondents claimed a fee item 10 (preparation / available range = 3 – 6
units) and 11 (attendance / available range = 1 – 3 units per hour) for each of
a case management conference on August 9, 2005 and February 10, 2006. The
August 2005 conference addressed timelines for the filing of the Crown
Respondents’ material and for the filing of the parties’ respective motion
material for their appeals of the June 15, 2005 order, resulted in a
straightforward order and did not appear difficult. I allow 3 units and 1
unit per hour respectively for fee items 10 and 11. The February 2006
conference addressed extensions of time for filing respective records, hearing
schedule and possibility of mediation. I allow 4 units and 2 units per hour
respectively for fee items 10 and 11.
[13]
I
allow 4 and 3 units respectively for fee items 13(a) (preparation for first day
of hearing / available range = 2 – 5 units) and 13(b) (preparation for second
day of hearing / available range = 2 – 3 units). I allow the maximum units
claimed for fee items 14(a) (attendance by first counsel at hearing) and 15
(written argument). The allowances for counsel fees result in a total amount ($15,240)
arguable within the limits of the award of costs.
A. Disbursements: Photocopies
($6,877.73), Couriers ($1,982.70), Filing Fees ($333.50), Research ($2,732.40),
Court Reporter/Transcripts ($734.45), Travel ($301.49) and Taxi ($6.96)
(1) The Crown
Respondents’ Position
[14]
The
Crown Respondents asserted that the 2008 bill of costs complained of below by
the Applicants was a draft never filed for assessment and discovered to be
an error, of which the Applicants were advised. The filed evidence
substantiates the reasonableness and necessity of the claimed disbursements.
(2) The Applicants’
Position
[15]
The
Applicants led evidence of a draft bill of costs served on them in 2008 showing
disbursements totalling $4,399.03. An increase to $12,969.23 in the filed bill
of costs being assessed means that the expenses had not been posted in 2008 and
could not be attributable to this litigation. It is unlikely that disbursements
could include some $8,000 worth of inaccuracies. Therefore, the relevance of
these disbursements unsupported by clear evidence is tenuous.
[16]
The
Applicants argued that individual items are unreasonable, i.e. $6,877.73 for
photocopies up from $4,399.03 posted in 2008. Unlimited access to LexisNexis
for computer research is available at approximately $300 per month. Only the
real cost attributable to this litigation, i.e. a portion of the monthly flat
fee, should be assessed as opposed to profiting from the portions within said
flat fee attributable to other matters and not this litigation.
II. Assessment
of Disbursements
[17]
My
findings in Halford v. Seed Hawk Inc. (2009), 69 C.P.R. (4th)
1, [2006] F.C.J. No. 629 (A.O.), 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 set out my views on the
threshold of proof for categories of costs and 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. 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.”
[18]
Paragraph
65 of Abbott above summarized my practice for photocopies including the
need “to strike the appropriate balance between the right of a successful
litigant to be indemnified for its reasonable necessary costs and the right of
an unsuccessful litigant to be shielded from excessive or unnecessary costs.”
The proof here was less than absolute.
[19]
This
judicial review was instituted on August 13, 2004. The Crown Respondents filed
a Notice of Appearance on August 20, 2004. The cost for the Crown Respondents to
prove absolutely, for example, the charge of $80.21 + tax on July 12, 2004, for
multiple copies and collation of a 170 page document could be prohibitive. The
invoice has the correct internal DOJ file number 2-227680. I have little doubt
that this disbursement did not relate to this judicial review. Its purpose is
obscure on the face of the invoice as the 170 page document is not identified.
I hold in para. 50 of Astrazeneca above that costs prior to institution are
assessable, but that only a reduced amount for prior art will be allowed
because the paucity of evidence made confirmation of nexus difficult.
[20]
As
part of the filing fees ($333.50), the Crown Respondents claimed $16.50 + tax
for a motion record filed February 9, 2006, addressing the Applicants’ motion
to extend time to file their record with a corresponding extension for time for
the filing of the Crown Respondents’ record. These materials were addressed
within the scope of the case management conference convened on February 10,
2006, for which I allowed fee item 10 and 11 amounts above,
notwithstanding that the resultant February 28, 2006 order by the case
management prothonotary was silent on costs. I held above that I must
remove disbursements associated with motions and their orders silent on costs,
but I am not inclined to do so for documents integral to or addressed within a
case management conference even if one might argue that a motion occurring
within a case management conference should be considered a separate event
subsequent to the limits noted above for interlocutory dispositions on costs. I
allow a reduced amount of $5,800 for photocopies.
[21]
Paragraph
111 of Abbott outlines my usual concerns with computer research. As noted above,
I should account for orders silent on costs. I allow a reduced amount of
$2,150.
[22]
I
allow couriers at the reduced amount of $1,600. I allow filing fees, court
reporter/transcripts, travel and taxi as presented at $333.50, $734.45, $301.49
and $6.96 respectively.
[23]
GST
was broken out by its different rates in the bill of costs. The Crown
Respondents’ evidence, i.e. a chart for each disbursement category,
was very helpful. I have for the purpose of GST assumed that my allowance
for computer research left untouched the amounts of $107.31 and $136.03 within
the claimed total of $2,732.40 and for which GST at 6% and 5% were claimed and allowed
respectively at $6.44 and $6.81. Therefore, subtracting $107.31 and $136.03
from my assessed subtotal of $10,926.40 leaves $10,683.06 subject to 7%
GST or $747.81. This latter amount added to $6.44 and $6.81 results in my
allowed subtotal of $761.06 for GST.
[24]
The
Crown Respondents’ bill of costs, presented at $39,403.97, is assessed and
allowed at $27,689.46.
“Charles
E. Stinson”
Vancouver, BC
May 13,
2010
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