Date: 20100819
Docket: T-462-08
Citation: 2010 FC 827
BETWEEN:
HARRY WAWATIE, TOBY DECOURSAY,
JEANNINE MATCHEWAN AND
LOUISA PAPATIE, IN THEIR CAPACITY AS
MEMBERS OF THE ELDERS COUNCIL OF
MITCHIKANIBIKOK INIK
(also known as the ALGONQUINS OF BARRIÈRE LAKE)
Applicants
and
MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
and
CASEY RATT, RICKY DECOURSAY,
DONAT THUSKY, ROGER JEROME AND
WAYNE PAPATIE, CLAIMING TO BE CHIEF
AND COUNCIL OF THE ALGONQUINS
OF BARRIÈRE LAKE CUSTOMARY BAND
COUNCIL PURSUANT TO A SELECTION
PROCESS HELD ON JANUARY 30TH,
2008
Respondents
ASSESSMENT OF
COSTS – REASONS
Johanne Parent
Assessment Officer
[1]
The
applicants discontinued their Application for Judicial Review on March 4, 2009.
On May 6, 2010, the respondent Minister of Indian Affairs and Northern
Development (the respondent) filed its Bill of Costs. A timetable for written
disposition of the assessment of the respondent’s Bill of Costs was issued on May
12, 2010 and sent to both parties.
[2]
The
respondent filed the affidavit of Virginie Cantave as well as representations
in reply and the applicants filed written submissions.
[3]
Pursuant
to Rules 402, 403 and 407 of the Federal Courts Rules, the respondent
claims that, in the event of a discontinuance and in the absence of any
directions by the Court, costs should be assessed in accordance with Column III
of Tariff B.
[4]
The
applicants, in their representations, mention that this is an appropriate case
for the parties to bear their own costs. To that effect, they request that
“this honourable Court exercises its discretion under Rule 400 to order that
the parties bear their own costs”, claiming that the respondent’s conduct
unnecessarily lengthened the duration of the proceeding, making it impossible
for the applicants to resolve the issues in a timely manner.
[5]
Rule
402 of the Federal Courts Rules indicates that a party against whom an
application has been discontinued is entitled to costs unless otherwise ordered
by the Court or agreed by the parties. In this case, there is no order from the
Court pertaining to the filing of the discontinuance or its related costs and
it is clear from the parties’ representations that they do not agree on costs.
Considering that an assessment officer is not the Court according to the
definition of assessment officer in the Federal Courts Act and Rules, and
consistent with Rule 405 of the Federal Courts Rules, I shall now assess
the Bill of Costs submitted by the respondent.
[6]
In
consideration for the work required in the preparation and filing of a Notice
of Appearance, the three units claimed under Item 27 for the filing of such
Notice are reduced to one unit.
[7]
An
Amended Motion seeking an Order to strike the Application was filed on August
11, 2008. Said motion was granted with costs to the respondent by the Court
(Prothonotary Aalto) on August 28, 2008. Prothonotary Aalto’s decision was
appealed and Reasons for Order and Order were delivered on January 6, 2009 by
the Honourable Mr. Justice Zinn, allowing the appeal, setting aside the Order
of Prothonotary Aalto, allowing costs to the applicants on the appeal and on
the motion before the Prothonotary. It is the applicants’ position that the
respondent’s motion was unnecessary and to delay proceedings.
[8]
Further
to the Order of Mr. Justice Zinn, the applicants filed a motion pursuant to
Rule 403 of the Federal Courts Rules for allocation of costs in excess
of Tariff B. On March 24, 2009, Mr. Justice Zinn dismissed said motion with
costs to the respondent. In its Bill of Costs, the respondent claims seven
units under Item 5 for the Motion Record filed in response to the Rule 403 motion.
[9]
Rule
409 of the Federal Courts Rules mentions: “In assessing costs, an
assessment officer may consider the factors referred to in subsection 400(3).” In
light of this Rule and the results of the Motion to Strike the Application before
Prothonotary Aalto and its appeal before Mr. Justice Zinn, I cannot come to the
conclusion that this matter was unnecessary or to delay proceedings. My reading
of the file and the two Court’s decisions lead me to believe that there were
sufficient contentious issues raised by the parties and dealt with by the Court
to indicate that the issues raised were not to cause delays in the proceeding.
[10]
To
justify the claim of seven units, the respondent indicates in its submissions
that “the motion record contained 58 pages of affidavit material and written
submissions…” I have reviewed the documents filed on February 16, 2009 and
could not find any affidavit but there are seven pages of written submissions
along with a book of authorities. Although I consider the arguments of the
respondent quite complete on the issues of costs payable forthwith and
allocation of costs above Column III of Tariff B, I do not believe that the
issues raised deserve the maximum number of units under the Tariff. Therefore, I
allow five units under Item 5.
[11]
A
supplementary argument is raised by the applicants to the effect that, since
they were awarded costs by Mr. Justice Zinn on the motion before him and, by extension,
before Prothonotary Aalto, “any cost award should be discounted by the
outstanding costs owing to the applicants in respect of these two motions”. I
agree with the respondent’s counsel. An adjustment of costs by way of set-off
pursuant to Rule 408(2) can be made where parties are liable to pay costs to
each other. In the case at bar, no Bill of Costs can be found in the Court file
on behalf of the applicants nor are any submissions filed in that regard. Consequently,
I will not discount the respondent’s Bill of Costs.
[12]
The respondent claims, under Item 27 (such other services as may
be allowed by the assessment officer or ordered by the Court), three units
multiplied by the time dealing with the Case Management Conferences held on
March 10, 2009, March 12, 2009 and July 2, 2009. The attendance at conference
in Pre-hearing procedures is covered under Item 11 of Tariff B. These claims
were not contested by the applicants and for each case
management conference, I have corrected the Bill of Costs to reflect
the correct Item number and allow the number of units claimed but under Item 11.
[13]
Seven units are claimed under Item 7 (Discovery of documents,
including listing, affidavit or inspection) for the filing of the Affidavits of
Camil Simard, Laurier Riel and Denis Nault, on June 5, 2009. From the Court
file, I note that these affidavits were submitted in response to the
Application. I suspect that the respondent meant to claim their preparation
under Item 2 (Preparation and filing of all defences, replies, counterclaims or
respondent’s records and materials) and I will, therefore, correct the Bill of
Costs to reflect the correct Item number.
[14]
The applicants indicate in their submissions that no costs should
be awarded to the respondent under this Item in consideration for the “attempts
of the Crown to gain a strategic advantage over the applicants by purposefully
using evidence in the other official language when equally adequate or better
evidence is available in the official language chosen by the applicant.” They
further submitted that the delays occasioned by the French language affidavits
in the Application significantly impeded the litigation.
[15]
In reply, the respondent, referring to the decision of Lavigne
v. Canada [1995] F.C.J. No. 737 (FCTD) argues that it
did not have any obligation to translate the affidavits and that it is the
witnesses’ right to testify in their language of choice. With regards to the
delay, the respondent quoted Prothonotary Tabib’s oral directions of September
15, 2009 and pointed out to the fact that the applicants, despite the
directions, did not file any materials to set or stay the schedule before
December 11, 2009.
[16]
I note that paragraphs 6 to 10 of the decision of the Honourable
Mr. Justice Noël in Lavigne (supra) are unambiguous. The affiants have the
right to give testimony in the language of their choice:
6. This provision is not ambiguous insofar as
its application to the present matter is concerned. The respondent is required
to use the official language used by the other party in oral or written
pleadings in the proceedings; or in les plaidoiries ou les actes de la
procédure, as is stated in the French text of section 18. Whatever construction
one may wish to give to the term "pleadings" or
"plaidoiries", it does not include evidence tendered in the course of
a proceeding. Whether one resorts to the common dictionary meaning ascribed to
that term4, or its juridical meaning under the Rules
of this Court5, the Code of Civil Procedure of the
Province of Quebec6, or the rules of practice promulgated by
the courts of the provinces7, evidence does not come within the ambit
of that term. In this regard, Isaac J. (as he then was) stated, in Zavitz
Technology Inc. v. 146732 Canada Inc. (1991), 49 C.P.C. (2d.) 26, at p. 38:
·
In the context of a civil proceeding, pleadings are the
opposite of affidavits, which consist of evidence by which facts may (be)
proved or from which they may be inferred.
While this statement was made by reference to
the Ontario Rules of Civil Procedure, it is reflective of the state of the law
under both legal systems against which section 18 has been framed.
7. It follows that testimony by way of affidavit
does not form part of the "pleadings" or "les plaidoiries"
or "les actes de procédure" within the meaning of section 18 of the Official
Languages Act and hence the respondents are subjected to no linguistic
obligations with regard thereto. By parity of reasoning, the same extends to
the documents annexed to these affidavits by way of exhibits.
8. This conclusion otherwise derived from the
clear and unambiguous wording of section 18 is entirely consistent with the
constitutional linguistic guarantees pertaining to the use of either official
languages in judicial proceedings. Section 133 of the Constitution Act,
1867, and subsection 19(1) of the Charter both guarantee the right of a litigant
to use either official languages in proceedings in any courts established by
Parliament.8 As was stated by Beetz J. in Société
des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549, at p. 574, both these guarantees:
·
(...)
vest in the speaker or in the writer or issuer
of court processes and give the speaker or the writer the constitutionally
protected power to speak or to write in the official language of his choice.
9. In the further words of Beetz J. in MacDonald
v. City of Montreal, [1986] 1 S.C.R. 460, at p. 483:
·
(...)
the language rights then protected are those of
litigants, counsel, witnesses, judges and other judicial officers who actually
speak, not those of parties or others who are spoken to; and they are those of
the writers or issuers of written pleadings and processes, not those of the
recipients or readers thereof.
10. Section 18 of the Official Languages Act
enhances this constitutionally enshrined right to express oneself in the
official language of one's choice in court proceedings by casting upon federal
institutions the further obligation to use, in oral or written pleadings, the
official language chosen by the other party, thereby creating a right for the
opposing party not only to speak or write in the official language of his
choice, but to hear and read the pleadings emanating from the governmental
party in that language. While this enhancement is substantial, it does not go
beyond what is stated in section 18, and there is no constitutional basis upon
which the term "pleadings" or its French equivalents could be given a
meaning contrary to what is commonly and juridically understood.
Furthermore, at paragraph 14 of that same
decision, the Honourable Mr. Justice Noël states:
14. I would note before concluding this aspect of the analysis
that there is no suggestion here that the respondents have chosen their
witnesses by reference to their language with the view of impeding the
advancement of the applicant's case. The witnesses are either persons against
whom specific allegations have been made by the applicant in support of his
application, or persons who are the most knowledgeable of the facts being
deposed to. Courts would obviously take a dim view on any attempt on the part
of the Crown or a federal institution to gain a strategic advantage by purposefully
using evidence in the other official language when equally adequate or better
evidence was available in the official language chosen by the private litigant.
[17]
In the case at bar, it has been suggested by the applicants that
the respondent’s witnesses were chosen to impede the advancement of the case. But,
even though the applicants suggest that equally or better evidence was
available in the applicants’ language of choice, no further evidence was put
forward to that effect. Further, the Court Record indicates that the applicants
did advise the Court by way of letter on June 30, 2009 that the language of the
respondent’s affidavits created problems for cross-examinations and preparation
of record. And, on July 2, 2009, the Case Management Judge extended the time to
file the affidavit in reply and to deal with cross-examinations. On September
16, 2009, further directions were issued by the Case Management Judge asking
for a formal motion to be brought to extend, vary or stay the schedule to which
the applicants replied with the filing of a motion to amend the Application and
to adjust the schedule on December 11, 2009. It is my view that both parties
caused delays in this proceeding and that the respondent, with no further
evidence, should not be penalized for the language used by the affiants. In
consideration for the work performed in the preparation of the affidavits and
notwithstanding that no record was actually filed, I allow five units.
[18]
The respondent claims seven units under Item 5 (preparation and
filing of a contested motion, including materials and responses thereto) for
the filing of a Motion Record on December 21, 2009 in response to the
applicants’ Motion to amend its Application. From my reading of the Court file,
the Court did not deal with that motion or its related costs before the
discontinuance was filed. I, therefore, disallow this claim in light of the
decision in Balisky v. Canada 2004 FCA 123 (A.O.) where the Senior
Assessment Officer stated:
Rule 400(1), which vests full discretionary power in the Court
over awards of costs, means that orders and judgments must contain visible
directions that costs have been awarded. Given the Federal Courts Act,
ss.3 and 5(1) defining the Court and Rule 2 of the Federal Courts Rules,
1998 defining an assessment officer, the absence of that exercise of prior
discretion by the Court leaves me without jurisdiction under Rule 405 to assess
costs.
[19]
Fees
are claimed under Item 25 for services after judgment. Item 25 contemplates the
review and the reporting of the final Court decision to the client. I cannot
find in the respondent’s submissions or the Court file any justifiable services
rendered in that regard and, therefore, disallow the one unit claimed.
[20]
The
maximum number of units is claimed under Item 26 for the Assessment of Costs. In
response, the applicants submit that the costs should be assessed at fewer units.
I agree with the applicants. Given my experience in dealing with costs and
considering the affidavit and submissions filed by the respondent, I allow four
units.
[21]
The
fees for assessable services are allowed in the amount of $ 2,470.00 plus GST.
The
respondent claimed the Provincial Sales Tax (PST) on all assessable services.
The events of this litigation happened before July 1, 2010 while “legal
services” were not considered a taxable service under subsection 1(1) of the Retail
Sales Tax Act, R.S.O. 1990, c. R.31. Since costs are an indemnity for
actual expenditures, I consider that I do not have the authority to allow the
PST as claimed.
[22]
Consistent
with my findings at paragraph 14, the associated disbursements for courier and
reproduction services of the respondent’s Motion Record in response to the
applicants’ Motion to amend the Application, are disallowed.
[23]
I examined the remaining disbursements claimed along with the
supporting material and consider all charges claimed on or before June 5, 2009, necessary
charges for the conduct of this matter. The amounts are not contested, are reasonable
and they are, therefore, allowed.
[24]
The
bill of costs is allowed for a total amount of $4,192.50.
“Johanne Parent”
Toronto, Ontario
August 19, 2010
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