Ballantyne v. Bighetty, 2012 FC 116

Date: 20120130

Docket: T-721-11

Citation: 2012 FC 116

BETWEEN:

            ASSESSMENT OF COSTS – REASONS

Charles E. Stinson

Assessment Officer

[1]               The Court dismissed with costs to the Respondents this application for judicial review of a decision of the Mathias Colomb Cree Nation and the Department of Indian and Northern Affairs to enter into an agreement to settle a tort claim following a diesel spillage on the reserve. I issued a timetable for written disposition of the assessment of the respective bills of costs of the Respondents, Chief Ratification Officer Claudette Bighetty and Mathias Colomb Cree Nation (the CRO and Cree Nation Respondents), and of the Respondent, Her Majesty the Queen in Right of Canada (the Crown Respondent). The parties requested and received an extension of time further to indications of possible consensus.

[2]               Counsel for the Crown Respondent submitted a draft consent Order, for signature by an Assessment Officer, Prothonotary or Judge, endorsed by all counsel as follows:

WHEREAS the August 12, 2011 Reasons for Judgment and Judgment of the Honourable Mr. Justice Russell dismissed the application brought by the Applicants and granted costs payable to the Respondents but did not set the amount of costs owed;

AND WHEREAS the Respondents Chief Ratification Officer Claudette Bighetty and Mathias Colomb Cree Nation have served and filed a Bill of Costs totalling $12,810.26, which has been consented to as to form and content by counsel for the Applicants;

AND WHEREAS the Respondent Her Majesty the Queen in Right of Canada has served and filed a Bill of Costs totalling $6,690.00, which counsel for the Applicants also agrees to;

NOW THEREFORE THIS COURT ORDERS THAT:

1.         The Applicants are to pay the Respondents Chief Ratification Officer Claudette Bighetty and Mathias Colomb Cree Nation the sum of $12,810.26 in costs owing;

2.         The Applicants are further to pay the Respondent Her Majesty the Queen in Right of Canada the sum of $6,690.00 in costs owing;

3.         Post-judgment interest, at a rate in accordance with the Interest Act, R.S.C., 1985, c.I-15, will begin to apply to any unpaid portion of the sums cited above 30 days after the date of this Order.

[3]               An Assessment Officer is not the “Court” as that term is used in the Federal Courts Rules and cannot issue orders: see Marshall v Canada, 2011 FCA 105 and Sander Holdings Ltd v Canada (Minister of Agriculture), 2009 FCA 199. However, it is an Assessment Officer who translates an order for costs to a dollar amount. A litigant may enforce a Certificate of Assessment as if the Certificate was an order of the Court because the process of the Certificate flows from the authority of the order for costs. Form 425A (writ of seizure and sale) reinforces this notion given its separate line for an amount of costs. As well, although Rule 443 (providing for a second writ to enforce costs, after they have been assessed, ordered at same time as an ascertained sum of money) is not directly applicable because the disposition here of the application for judicial review was not for an ascertained sum of money, I think that it also reinforces generally a notion of enforcement associated with a Certificate of Assessment.

[4]               Accordingly, I can and will issue a Certificate of Assessment as follows adhering as closely as possible, given the difference in my jurisdiction relative to that of the Court, the wording of the draft consent Order (modified wording in bold italics):

WHEREAS the August 12, 2011 Reasons for Judgment and Judgment of the Honourable Mr. Justice Russell dismissed the application brought by the Applicants and granted costs payable to the Respondents but did not set the amount of costs owed;

AND WHEREAS the Respondents Chief Ratification Officer Claudette Bighetty and Mathias Colomb Cree Nation have served and filed a Bill of Costs totalling $12,810.26, which has been consented to as to form and content by counsel for the Applicants;

AND WHEREAS the Respondent Her Majesty the Queen in Right of Canada has served and filed a Bill of Costs totalling $6,690.00, which counsel for the Applicants also agrees to;

I HEREBY CERTIFY THAT:

1.         The Applicants are to pay the Respondents Chief Ratification Officer Claudette Bighetty and Mathias Colomb Cree Nation the sum of $12,810.26 in costs owing, which I have assessed on consent;

2.         The Applicants are further to pay the Respondent Her Majesty the Queen in Right of Canada the sum of $6,690.00 in costs owing, which I have assessed on consent;

3.         Post-judgment interest, at a rate in accordance with the Interest Act, R.S.C., 1985, c.I-15, will begin to apply to any unpaid portion of the sums cited above 30 days after the date of this Certificate of Assessment.

“Charles E. Stinson”

Vancouver, BC

January 30, 2012

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-721-11

STYLE OF CAUSE:                          LEAH BALLANTYNE et al v CHIEF RATIFICATION OFFICER CLAUDETTE BIGHETTY et al

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ASSESSMENT OF COSTS:                    CHARLES E. STINSON

DATED:                                                                                 January 30, 2012

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: