Docket: T-1854-10
Citation: 2012
FC 165
BETWEEN:
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STEEVE
MATHIAS, ON HIS OWN BEHALF
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Applicant
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and
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LONG POINT FIRST NATION ELECTION
COMMITTEE (LPFNEC)
MRS. KATHLEEN JEROME-RODGERS, IN HER
CAPACITY AS ELECTORAL PRESIDENT,
MS. VERONICA POLSON, IN HER CAPACITY AS
ELECTORAL OFFICER,
MS. JESSICA POLSON, IN HER CAPACITY AS
ELECTORAL OFFICER
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Respondents
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and
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LONG POINT FIRST NATION
COUNCIL (LPFNC)
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Respondent
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ASSESSMENT
OF COSTS - REASONS
Bruce Preston
Assessment
Officer
[1]
Further to the
Respondents’ motion to strike Exhibit C and several paragraphs from the
Applicant’s Affidavit, by Order dated February 15, 2011, the Court awarded
costs to the Respondents. On July 18, 2011, the Applicant discontinued this proceeding.
The Respondents, including Long Point First Nations Council (the Respondents),
have filed separate Bills of Costs concerning the costs of the motion and the
costs of the discontinuance of the Application. These reasons will address the
costs for both Bills of Costs. However, a separate Certificate of Costs will be
issued for each Bill of Costs.
Discontinuance
[2]
In
the Bill of Costs filed as a result of the discontinuance, the Respondents have
claimed 7 units under Item 2 for the preparation and filing of all defences,
including reply affidavits, and Respondent’s Record. At paragraph 6 of their
Written Representations as to Costs (Written Representations), the Respondents
submit:
To preserve their interest, the
Respondents served the Applicant with the Respondents’ affidavits on March 14,
2011 followed by the Respondents’ Record on May 11, 2011 as per the Federal
Courts Rules. The Respondents met all required timelines set by the Federal
Courts Rules.
Then, at paragraphs 27 and 28, the
Respondents submit that Items 2, 24 and 26 in the Bill of Costs for the
Discontinuance are claimed at the maximum units under Column III of Tariff B of
the Federal Courts Rules, arguing that the fees and disbursements
claimed are reasonable and reflect the reality of the demands of complex
Aboriginal constitutional litigation, such as appeals from customary elections.
[3]
Concerning
Item 2, at paragraphs 24 and 25 of his Responding Submissions, the Applicant
argues:
24.
This item
contemplates the preparation of all the material required in terms of pleadings
and records. However, the Respondents have sought to claim multiple items under
this heading, some of which are not taxable, some of which are not instructed
by the Court, and all of which seek compensation at the highest possible rate.
25.
For
instance, as has been set out, the Respondents are seeking seven units for
preparation and filing of the Respondents’ Record. The Respondents’ Record
should not have been filed as the Applicant had not filed an Application
Record. The Respondents now seek to recover costs for preparing a response that
was not required.
[4]
By
way of rebuttal, the Respondents contend that they filed their Record because
the Applicant’s Record was due on or before April 26, 2011. The Respondents
argue that the Applicant did not inform counsel of his intention to not proceed
with the application and the Respondents should not be penalized for the
Applicant’s inaction which caused the Respondents to incur further legal
expense.
[5]
It
has been held many times that in a Bill of Costs a party may only submit one
claim under Item 2 (see: Toronto Sun
Wah Trading Inc. v Canada (Attorney General), 2009 FC 1037, Imperial Oil Resources Ltd. v
Canada (Attorney General), 2011 FC 652, Advance Magazine Publishers Inc. v Farleyco Marketing Inc., 2010 FC 597). Therefore, at the end
of the day, the Respondents are entitled to submit one claim under Item 2,
which they have done.
[6]
Concerning
the claim under Item 2 as it relates to the Respondents’ Record, Rule 310(1)(a)
of the Federal Courts Rules states:
310. (1) A respondent to an application
shall, within 20 days after service of the applicant’s record,
(a) serve the respondent’s
record
[7]
In
light of the provisions for Rule 310(1)(a), I find that the time for filing the
Respondent’s Record commences with the service of the Applicant’s Record. As
the Applicant had not served and filed his Record, the time for filing the
Respondent’s Record had not yet started to run. With this in mind, I find that
the Respondents filed their Record prematurely. Given that there was no
requirement to file their Record, I find that it is not reasonable to require
the Applicant to compensate the Respondent for a step taken unnecessarily. Consequentially,
I find that the Respondents are not entitled to a claim under Item 2 for their
Record.
[8]
On
the other hand, the Respondents’ claim under Item 2 may include other materials
in addition to the Respondents’ Record. Item 2 under Tariff B states:
Preparation and filing of all defences,
replies, counterclaims or respondents’ records and materials
(Emphasis added)
[9]
On
March 15, 2011, the Respondents served their affidavits in response to the
Applicant’s affidavits. I find that in the circumstances of a judicial review,
a claim under Item 2 may include the preparation and service of affidavits as
they are materials prepared in response to the application. Therefore, in
serving their affidavits in response to the Applicant’s affidavits, the
Respondents are entitled to a claim under Item 2. Given the circumstances of
this file, I allow the minimum of 4 units under Item 2 for the preparation and
service of the Respondents’ affidavits.
[10]
Concerning
the Respondents’ claim under Item 24, in their Written Representations, the
Respondents contend that they chose to be represented by a lawyer practicing in
Ottawa because the Applicant had chosen to hold the hearing in Ottawa. Counsel
argued that the Long Point First Nation Reserve (LPFN) is approximately 8 hours
from Ottawa, creating a
difficulty in having affidavits sworn and documents filed. Counsel argues that
this necessitated the Respondents’ lawyers traveling from Ottawa to LPFN
twice in order to interview the Respondents and prepare the Respondents’
Record. Respondents’ counsel travelled to LPFN December 20 – 23, 2010 and March
10 – 15, 2011. In support of the contention that they are entitled to a claim
under Item 24, the Respondents referred to Sanmamas Compania Maritima S.A. v
“Netuno” (The), (1995), 102 FTR 181 (T.D.) and Rothmans, Benson &
Hedges Inc. v Imperial Tobacco Ltd., (1993), 66 FTR 148.
[11]
At
paragraph 29 of his Responding Submissions, the Applicant argues:
29.
This item
should not be allowed as it requires a visible direction from the Court. No
such direction was given. If it were allowed, the Respondents may claim a
disbursement for travel if proper receipts are provided in order to justify
such expense. To date no receipts have been provided for travel expenses
claimed by the Respondents’ counsel. The only request has been for costs
associated with Item 24 in the Bill of Costs. These costs are not reasonable
nor are they permitted without directions from the Court.
In
support, the Applicant referred to Marshall v Canada, [2006] FCJ No 1282 at
paragraph 6.
[12]
The
decisions referred to by the Respondents (Sanmamas (supra) and Rothmans
(supra)), were both rendered by judges of the Court with the intention
of providing directions for the assessment of costs. Pursuant to Rule 400(1) of
the Federal Courts Rules, the Court has full discretionary power over
the amount and allocation of costs. As assessment officers are not members of
the Court, they do not possess the same discretionary powers. Therefore the
decisions referred to by the Respondents may be distinguished from the
circumstances of this particular file.
[13]
I
agree with counsel for the Applicant, Marshall (supra) is just
one of many decisions which have held that, absent a direction from the Court,
similar to those found in Sanmamas (supra) and Rothmans (supra),
assessment officers do not have jurisdiction to allow claims for travel by
counsel under Item 24. In keeping with the decision in Marshall (supra),
Item 24 is not allowed.
[14]
The
Respondents have claimed 6 units under Item 26. In his Responding Submissions,
the Applicant contends that the Respondents have submitted two claims under
Item 26, one for each Bill of Costs. The Applicant argues that the Respondents
are entitled to only one claim under Item 26 for the assessment of costs of the
discontinuance and the motion. At paragraph 32 of his Responding Submissions,
the Applicant argues that the costs sought in respect of the assessment of
costs for the motion should not be separate as the motion formed part of the
Application process itself. Counsel further submitted that the costs
contemplated for the assessment of costs should be allowed at the low end of
Column III of Tariff B.
[15]
By
way of rebuttal, the Respondents submit that the Applicant has not presented
any case law to support one allowance for the assessment of costs. Counsel for
the Respondents further contends that the Respondents were awarded costs of the
motion and are entitled to costs of the discontinuance and have submitted two
separate Bills of Costs which warrant two separate assessments and two claims
under Item 26.
[16]
In
the usual course of an assessment, the interlocutory motions for which costs
have been awarded are assessed under the same Bill of Costs as the substantive
proceeding and one claim under Item 26 covers the assessment of both sets of
costs. This being the situation, I can find no reason to allow two claims under
Item 26 simply because two Bills of Costs were submitted. The materials
submitted by the parties addressed the costs of the motion and the
discontinuance in one submission and the only duplication was the request for
two claims under Item 26 in the two Bills of Costs. Therefore, only one claim
under Item 26 will be allowed.
[17]
Further,
having reviewed the materials submitted in support of the Bills of Costs, it is
apparent that this assessment was not complicated. The items claimed were very
straightforward and there were very few disbursements claimed. Therefore, I
allow one claim under Item 26 at 3 units.
[18]
Concerning
the Respondents’ disbursements, the only disbursement contested by the
Applicant is the fee claimed for the commissioning of the Respondents’
affidavits. As the claims for photocopying, binding and indices are not
contested, and having reviewed the Court record, I find these disbursements to
be reasonable and necessary and allow them as claimed.
[19]
Concerning
the claim for the commissioning of affidavits, at paragraph 41 of their Written
Representations, the Respondents contend:
LPFN is a remote community in northern Quebec where
commissionaires/notaries are rare. The Respondents’ lawyer is not a member of
the Quebec Bar and could not commission the affidavits in Quebec on March 14, 2011. Therefore,
Sylvie Kudjick, a notary licensed in the province of Quebec and who lives in
Belleterre, Quebec, located approximately twenty five (25) kilometres from
LPFN, commissioned copies of the five (5) affidavits and exhibits and charged
$5 per signature for the affidavits and each exhibit, which resulted in a fee
of $726.85.
[20]
At
paragraph 34 of his Written Submissions in response, the Applicant argues:
The Respondents claim an amount of
$726.85 for Sylvie Kudjick to commission copies of the affidavits and exhibits.
This fee is extravagant and is not proper for these proceedings. The Applicant
should not be responsible for paying such a fee considering the Respondents
chose to hire a lawyer who they knew or ought to have known was not a member of
the Quebec Bar and would not be able to commission documents in Quebec. For the reasons set out, the
Applicant submits this disbursement should not be allowed.
[21]
In
rebuttal, the Respondents submit that the fee for the commissioning of
affidavits is not extravagant and is supported by a receipt.
[22]
In
Florence v Canada (Air Transport Committee), [1991] 2 FC D-32 and Asbjorn
Horgard A/S v Gibbs/Nortac Industries Ltd, [1989] 1 FC D-32, it was decided
that fees of counsel used as agents are not allowable as disbursements but are
covered by the allowance for services of counsel under Tariff B. The
Respondents contracted Sylvie Kujick to commission their affidavits. In
commissioning the Respondents’ affidavits Ms. Kujick was performing the
functions of an agent for the Respondents’ counsel. Further, Item 2 has already
been claimed and allowed for the preparation and service of the Respondents’
affidavits, which, I find, includes the commissioning of the affidavits. This
being the situation, the disbursement for the commissioning of the Respondents’
affidavits is not allowed.
Motion
[23]
Turning
to the Respondents’ Bill of Costs for the motion to strike portions of the
Applicant’s affidavit, concerning their claims under Items 5 and 6, the
Respondents contend that they are seeking the maximum number of units due to
their counsel’s expertise in Aboriginal law.
[24]
At
paragraphs 26 and 27 of his Written Submissions, the Applicant contends that
the motion was straightforward and did not require any specialized knowledge of
the law. Counsel argues that it is clear from the Order of the Court that no
specialized knowledge of Aboriginal law was required in reaching a decision.
[25]
By
way of rebuttal, the Respondents contend that they should not be punished by
having their costs reduced for bringing an interlocutory motion to strike a
solicitor-client privileged legal opinion from the Applicant’s affidavit.
[26]
Having
reviewed the order of the Court dated February 15, 2011, it is apparent that
the primary issue on the motion to strike was solicitor-client privilege. I can
see nothing in the decision which hints at a requirement for specialized
knowledge of Aboriginal law. Further, I find that the Respondents are not punished
if their costs are reduced. On the contrary, if costs are allowed at a higher
level than is justifiable, then the Applicant is penalized. Although I find
that the Respondents’ claim at the high end of Column III is unreasonable, I
cannot agree with the Applicant, that Items 5 and 6 should be allowed at the
low end. The motion to strike was necessitated by actions of the Applicant.
Although not overly complex, the motion addressed issues of privilege, which
are to be taken very seriously. Weighing all of these factors, I allow Item 5
at the upper end of the scale (5 units). The Respondents have claimed 3.5 hours
for the hearing of the motion under Item 6. A review of the Court record
indicates that the motion had a duration of 2.5 hours. This being the case, I
allow Item 6 at 2 units per hour for 3 hours to provide counsel with time to
settle prior to the commencement of the hearing.
[27]
The
Applicant has not contested the Respondents disbursements of $70.18. Having
reviewed the Court record I find that the expenditures are reasonable and
necessary. Therefore, the Respondents’ disbursements are allowed as claimed.
HST
[28]
There
is one final issue to be addressed which affects both Bills of Costs. In his
Costs Submissions, the Applicant argues that the amount claimed for HST on
assessable services is claimed twice, once on its own and once as part of the
claim for HST on disbursements. The Applicant contends that this is duplicitous
and should not be allowed.
[29]
In
rebuttal, the Respondents submit that HST is a tax which must be collected.
Further, as the Respondents paid the HST on the disbursements, they should be
reimbursed on the assessment of costs.
[30]
Having
reviewed the materials filed in support of the Bills of Costs, it is apparent
that the Respondents’ disbursements, as claimed, include HST. Therefore,
additional HST should not be added to the costs allowed for disbursements.
Further, having reviewed the Bills of Costs, it is apparent that the
Respondents have claimed HST for assessable services twice, the first time on
the total fees claimed and the second time on the total fees and disbursements
claimed. Finally, from a review of the receipts submitted, it is apparent that
the Respondents were not charged PST on disbursements as they have a tax exempt
number. Therefore, HST should be calculated at 5% not 13 %. Taking all of these
factors into account, 5% HST is allowed on assessable services and the
additional HST claimed on disbursements is not allowed as the amounts claimed
include HST.
For the above reasons, the Bill of Costs
for the motion, presented at $4,050.28, is assessed and allowed for a total
amount of $1,571.68. Also, the Bill of Costs for the discontinuance of the
Application, presented at $5,084.26, is assessed and allowed for a total amount
of $1,279.93. A certificate of assessment will be issued for each Bill of
Costs.
“Bruce Preston”
Toronto, Ontario
February 7, 2012
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