Date: 20090311
Docket: T-201-08
Citation: 2009 FC 255
BETWEEN:
ALBERT DEAN LAFOND
Applicant
and
MUSKEG LAKE CREE NATION and CHIEF
GILBERT LEDOUX
Respondents
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Order and Order dated June 12,
2008,
the Court allowed the Applicant’s Application for Judicial Review, with costs.
[2]
On
August 8, 2008 the Applicant filed the Applicant’s Bill of Costs.
[3]
On
October
8, 2008,
Charles E. Stinson, Senior Assessment Officer issued the following oral
direction (confirmed in writing):
The Senior
Assessment Officer, Charles E. Stinson, has noted the bill of costs of the
Applicant filed August 8, 2008 and has further noted that its assessment
appears appropriate for disposition by way of written submissions. Therefore
the Senior Assessment Officer has directed that:
a) the
Applicant may serve and file all materials (if not already done), including
bill of costs, supporting affidavit and written submissions, by November 4,
2008;
b) the Respondents
may serve and file any reply materials by November 28, 2008;
c) the
Applicant may serve and file any rebuttal materials by December 19, 2008.
[4]
The
time limits set by the direction have now passed. The Applicant and Respondents
have both filed materials addressing the Bill of Costs. The Applicant filed
very brief written submissions and the Affidavit of Dawn Repchinski. These were
not overly helpful and, in many respects, confused rather than clarified
issues.
Fees
[5]
Although
there are several Items for which I will assess costs, there are several Items presented
for which I can find no basis for the claim on the Court Record. I will deal
with the disallowed items first.
[6]
The
Applicant submits claims under Item 5, preparation and filing of a contested
motion, for May 1, 6, 13 and 20, 2008. Although paragraphs 9, 10 and 13 of the
Affidavit of Dawn Repchinski particularize these claims, paragraphs 7 and 10 of
the Respondents’ submissions indicate that on May 1 and May 20, 2008, no motion
was filed. I can find nothing on the Court record which would support these
claims. Therefore, the claims under Item 5 for May 1 and 20, 2008 cannot be
allowed.
[7]
On
May 6 and 13, 2008, the Applicant submitted letters requesting directions of
the Court. These requests are further to paragraph 9 of the Order of May 5, 2008,
which provides for unanticipated issues to be brought to the attention of the
Court. There was no award of costs in that Order.
[8]
At
paragraph 9 of their submissions, the Respondents submit that the hearing of
May 14, 2008 and the subsequent Order emanate from the correspondence seeking
directions. Upon reviewing that Order, it is noted that, again, costs were not
awarded by the Court.
[9]
Having
regard to the above, the costs claimed under Item 5 for May 6 and 13, 2008 cannot
be allowed as no costs were awarded in either of the Orders which are remotely
connected to these letters.
[10]
The
Applicant also claims Item 5, preparation and filing of a contested motion,
submitted on April 29, 2008, for the motion returnable May 5, 2008 and Item 6
for the appearance on the motion of May 5, 2008. As indicated in paragraph [7]
above, no costs were awarded by the Court, therefore, costs cannot be allowed
for these items.
[11]
The
Applicant has claimed Item 6 for the appearance on a motion May 15, 2008. I have
reviewed the Court record and find no hearing that date, however the hearing on
May 14, 2008 mentioned above resulted in an Order rendered by the Court on May
15, 2008. I imagine this was a typographical error which also appears in the
Affidavit of Dawn Repchinski at paragraph 10. As indicated above, no costs may
be allowed as the Order of May 15, 2008 is silent as to costs.
[12]
Items
10 and 11 are claimed for a conference held June 12,
2008.
This Item is supported by paragraph 14 of the Affidavit of Dawn Repchinski.
[13]
At
paragraph 11 of their submissions the Respondents submit that no conference was
held on June 12, 2008: “The hearing of the judicial review application occurred
on June 4, 2008 in front of Madam Justice Tremblay-Lamer. The resulting
decision is dated June 12, 2008”. A review of the Court record confirms this. Therefore,
as I have been unable to substantiate this claim on the record, Items 10 and 11
cannot be allowed.
[14]
The
Applicant submits three claims under Item 24 for travel by counsel to attend a
trial, hearing, motion, examination or analogous procedure, at the
discretion of the Court (emphasis added).
[15]
The
amount claimed under Item 24, is not allowed. In Balisky v. Canada
[2004] F.C.J. No.536 at paragraph 6 the assessment officer states:
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 assessment officer, the
absence of that exercise of prior discretion by the Court leaves me without
jurisdiction under Rule 405 to assess costs.”
Since an assessment officer is not a member
of the Court, and the Order of June 12, 2008 provides no direction concerning
travel to attend hearings, I am without jurisdiction to allow the amounts
claimed under Item 24.
[16]
I
will now turn my attention to those Items for which costs may be allowed.
[17]
The
Applicant submits a claim of 7 units under Item 1. In support of this claim, at
paragraph 2 of the Affidavit of Dawn Repchinski, the Applicant simply submits
the dates the application was filed and served.
[18]
In
reply to the Bill of Costs, at paragraphs 2 and 3 of their submissions, the Respondents’
submit that the judicial review application centered on a very narrow issue and
that the issue was not complex.
[19]
Having
reviewed the record of the Court and the Reasons for Order and Order of June
12, 2008, I agree with the Respondents. There were only two issues before the
Court: does the Federal Court have jurisdiction over the present application and
does the Election Act apply. Further, although the Applicant’s Record
comprised five volumes, a great deal of the record was comprised of transcripts
of examinations and authorities.
[20]
Having
regard to the above, Item 1, claimed at 7 units, is allowed at 5 units.
[21]
The
Applicant claims 7 units under Item 5 for the preparation and filing of a
contested motion on April 1, 2008 and 3 units per hour under Item 6 for a one
hour appearance at the motion on April 15, 2008. Paragraph 3 of the Affidavit
of Dawn Repchinski states: “Counsel prepared and filed a contested motion, and
on April 1, 2008, a Motion Record of the Applicant for an Interim Injunction
was served and filed and on April 7, 2008, counsel appeared for one hour on the
motion”. The Respondents make no submissions concerning this motion.
[22]
A
review of the Court record reveals that the motion was heard on April 7, 2008,
not April 15 as claimed in the Bill of Costs. Furthermore, a review of the
Reasons for Order and Order of April 15, 2008 reveals that costs were awarded
to the Applicant in the cause.
[23]
A
review of the Applicant’s motion record reveals that the supporting Affidavit
of Albert Lafond and Memorandum of Fact and Law were 2 and 3 pages
respectively. However, upon reading the decision of the Court, the test the
Applicant was required to meet was whether there was a serious issue to be
tried. Although the materials were not voluminous, the injunctive relief sought
appears to have been somewhat complex. For the above reasons, I will allow 5
units under Item 5 and 3 units per hour under Item 6.
[24]
The
Applicant submits 5 events under each of Items 8 and 9, claiming 5 units for
the Item 8 events and 3 units per hour for the Item 9 events. The Bill of Costs
provides no details as to what these events relate to, however, the Affidavit
of Dawn Repchinski provides particulars at paragraphs 5, 6, 7, 11 and 12.The Applicant
makes no submissions as to the necessity of the various examinations claimed
under Items 8 and 9.
[25]
In
essence the Respondents submit that the examinations were not required. At
paragraph 6 the Respondents submit:
The Applicant unnecessarily lengthened
both the proceedings themselves and the materials filed with Madam Justice
Tremblay-Lamer by conducting lengthy and superfluous cross examination of the
deponents of affidavits. None of the material created during that lengthy and
onerous process was relevant or utilized by either the Applicant or Madam
Justice Tremblay-Lamer in her decision. Indeed, it is respectfully submitted,
that the cross examination of the deponents was simply an effort to harass and
intimidate. As such, it is submitted that the Applicant ought not to be
rewarded for that conduct.
[26]
The Respondents seem to be suggesting that the Applicant
should not be allowed anything for Items 8 and 9. Having
reviewed the affidavits of the various deponents, it is noted that the only
affidavit which is longer than 3 pages is that of Chief Gilbert Ledoux. It is
also noted that on May 6, 2008 counsel exchanged correspondence concerning the
scope of examination by Respondents’ counsel at the examination of Albert
Lafond. This led to the Court’s direction of May 7, 2008 which provided that:
“cross-examination on the applicant’s affidavit would be confined to the facts
deposed in the affidavits filed on the proceeding, not only to the four corners
of the applicant’s affidavit”. Given the Courts direction, the same latitude
should be allowed to the applicant.
[27]
Although not dealing
with exactly the same fact situation, in Mon-Oil Ltd. v. Canada [1993]
F.C.J. No. 1447 at paragraph 18, the assessment officer, in addressing the
issue of disbursements for an expert witness, states:
Part of his professional obligation
relating thereto would have included the recommendation for disbursements for
services considered, at the time, essential. Ultimately, the manner in which
the lawsuit unfolded may have rendered said services moot but he would have
been remiss, assuming essentiality and reasonableness as givens, in not
addressing these potential issues with and for the client. (emphasis added)
[28]
It is too easy to view a proceeding with
hindsight and conclude that an Item should not be allowed. In keeping with the reasoning
found in the above extract, Applicant’s counsel would have been remiss if she
had not addressed potential issues with deponents of the Respondents’
affidavits. Notwithstanding this, having reviewed the transcripts of the
examinations, I conclude that the examinations appear to have been more
expansive than the length of the affidavits would suggest was necessary.
[29]
For these reasons, 3 units are allowed for each
of the five events for which Item 8 is claimed and 1 unit per hour is allowed
for each of the five events for which Item 9 is claimed.
[30]
Item 25, services after judgment, is allowed as claimed.
Disbursements
[31]
In
support of the claim for disbursements, Applicant’s counsel submits a computer
printout of disbursements claimed and invoices for Royal Reporting Services and
Val McPherson/Stan Hartz as exhibits to the Affidavit of Dawn Repchinski.
[32]
The
Respondents’ only submission concerning disbursements is that the claims for
copies and transcripts of unnecessary and irrelevant cross examinations
conducted by the Applicant should be denied.
[33]
Having
allowed the assessable services for the cross examinations, and absent
submissions in opposition, I am prepared to allow disbursements as claimed. The
only disbursement which causes some concern is that claimed for travel costs.
[34]
In Canada (Canadian Food Inspection Agency) v. Walker [2005] F.C.J. No.
510 the assessment officer held:
The wording in Tariff B Item 24
"...at the discretion of the Court" is for the assessable services
that may be claimed by counsel as indemnification for travel time. I am of the
opinion this does not prohibit me from allowing associated and necessary travel
disbursements.
[35]
It
is clear that I have the jurisdiction to allow disbursements for travel of
counsel, however, the Applicant has claimed $3,103.00. Having reviewed the
printout of disbursements, I am only able to locate an expenditure of
$1,809.65. I will therefore allow travel costs in the amount of $1,809.65 and
total disbursements in the amount of $7,202.29
[36]
Pursuant
to the above reasons, the Applicant’s Bill of Costs presented at $26,320.31 is assessed
and allowed at $12,602.29. A Certificate of Assessment will be issued.
“Bruce Preston”
Toronto, Ontario
March 11, 2009
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