Date:
20090923
Docket: T-1778-08
Citation: 2009 FC 957
BETWEEN:
FRIEDA MARTSELOS, GLORIA VILLEBRUN,
BRADLEY LAVIOLETTE and FREDERICK BEAULIEU
Applicants
and
DAVID POITRAS, TONI HERON
and RAYMOND
BEAVER
Respondents
ASSESSMENT OF
COSTS – REASONS
Charles
E. Stinson
Assessment Officer
[1]
The
Applicants sought judicial review of a ruling (the decision below) by the Salt
River First Nation Appeals Arbitrator during the hearing of an appeal by the
Respondents, Toni Heron and Raymond Beaver (the Respondents), alleging certain
corrupt election practices. The decision below permitted the Respondents to ask
questions about an alleged fraud not identified in the notice of appeal. The
Court found (the Decision) that as the decision below was an interlocutory
decision and therefore not subject to immediate judicial review, this
application for judicial review must be dismissed with “costs to the
Respondents to be assessed in the full discretion of the assessment officer.” I
issued a timetable for written disposition of the assessment of the
Respondents’ bill of costs.
[2]
I
have not summarized the respective positions of the parties concerning counsel
fee items 5 (preparation) and 6 (appearance) claimed for the Applicants’ motion
for an expedited hearing as the resultant order was silent on costs. The
hearing judge (for the judicial review) was not specifically vested with
jurisdiction to decide or vary costs of this motion. Further to my findings in
paragraph 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]
(under appeal) and paragraph 26 of Fournier Pharma Inc. v. Canada (Minister of
Health),
[2008] F.C.J. No. 1151 (A.O.), I disallow these claimed counsel fees and any associated
disbursements (the allowance below for photocopies addresses the latter
although the Applicants did not raise it as a concern).
[3]
The
Applicants objected to the fee item 5 and 6 claims associated with the order
dated December 4, 2008 silent on costs concerning provision of a transcript of
the hearing below. Said order flowed from a ten-minute meeting convened by
the Court with counsel further to the December 2, 2008 letter from counsel for
the Respondents requesting an “urgent hearing” for a direction that the
Applicants file the complete transcript. The responding letter of an even date
from counsel for the Applicants used the term “hearing” in agreeing to a
teleconference to address the Respondents’ request. That both sides used the
term – hearing – to describe their appearance before the Court does not
necessarily mean it was a motion within the meaning of fee items 5 and 6. There
was already an order for expedited hearing of the judicial review. The parties
did not file motion records. I do not think that this was a pre-hearing
conference within the meaning of Rule 315 and fee items 10 (preparation)
and 11 (appearance), the costs for which the Decision would have authorized, because
it was more in the nature of disposition of an interlocutory application. I
therefore disallow these fee items 5 and 6 claims and any associated
disbursements.
[4]
The
Applicants conceded the long distance disbursement claim of $7.35 given the
remote location of the Respondents relative to that of their counsel. The Applicants
conceded the facsimile disbursement claim of $19.14 as it was assumed that long
distance charges in excess of the $2.50 flat fee for each transmission account
for the fact that $19.14 is not evenly divisible by $2.50.
I. Scale of Costs
A. The Respondents’ Position
[5]
The
Respondents argued that the unusual wording of the award of costs, i.e. in the
full discretion of the assessment officer, flowed from paragraph 25 of their
Memorandum of Fact and Law filed December 8, 2008 for the judicial review
hearing which requested enhanced costs under Column V because of the conduct of
the Applicants, i.e. insisting on an adjournment of the hearing below to bring
this application for judicial review contrary to clear jurisprudence that it
was premature. The default scale of Column III costs prescribed by Rule 407
would be grossly inadequate. Alternatively, the Respondents requested maximum
Column III costs.
B. The Applicants’ Position
[6]
The
Applicants noted that they had relied on Wihksne v. Canada (A.G.),
[2002] F.C.J. No. 1394 (F.C.A.) [Wihksne] at the judicial review hearing
to oppose the Respondents’ request for Column V costs on the grounds that the
Court’s discretion to increase the scale of costs should not be exercised
lightly and that there were no special circumstances justifying costs other
than the Column III default scale. The Court in Merck & Co. v. Apotex
Inc. [2006] F.C.J. No. 1491 (F.C.A.) found in paragraph 15 that by “virtue
of Rule 407, an award of costs, without stipulation as to scale or quantum, is
to be assessed in accordance with Column III.”
[7]
The
Applicants argued that the Decision did not specify Column V costs or any scale
or quantum of costs and therefore the Respondents are limited to Column III
costs. The wording of the Decision simply affirmed the assessment
officer’s existing authority and discretion within the full range of Column
III: see para. 22 of Urbandale Realty Corp. v. Canada, [2008]
F.C.J. No. 910 (A.O.); para. 4 of Turner v. Canada, [2007]
F.C.J. No. 1105 (A.O.) and para. 8 of Halford v. Seed Hawk Inc. [2009]
69 C.P.R. (4th) 1, [2006] F.C.J. No. 629 (A.O.) [Halford].
The Applicants argued further to paragraph 9 of Gardner v. Canada (A.G.),
165 A.C.W.S. (3d) 233 (A.O.) and paragraph 7 of Greater Moncton International Airport Authority v.
Public Service of Canada, [2009] F.C.J. No. 308 [Greater Moncton]
that the Respondents are not entitled to maximum Column III costs because each
item of costs is discrete and must be considered in its own circumstances.
C. Assessment
[8]
The
critical consideration is whether the term – full discretion – is superfluous. Sometimes, an
award of costs contains wording not a factor in an assessment of costs. For
example, my summary in paragraph 1 of Aventis Pharma Inc. v. Apotex Inc.,
[2009] F.C.J. No. 56 (A.O.) [Aventis] of the award of costs noted that
it provided for “reasonable disbursements.” Authorities already existed
confirming that costs include disbursements which must be reasonable. As well,
Tariff B1(3) provides that a “bill of costs shall include disbursements” and
B1(4) provides that no “disbursement…shall be assessed or allowed…unless it is
reasonable.”
[9]
The
hearing judge here was the same hearing judge who issued the award of costs
underlying my assessment of costs in Eli Lilly and Company v. Novopharm
Limited, [2009] F.C.J. No. 1018 (A.O.) [Eli Lilly]. There, the
Respondent sought increased costs in the Column IV and V ranges. The Court
referred to its “full discretionary power” authorized by Rule 400(1) and noted
conduct by the Applicant warranting increased costs. Paragraph 11 of the
award of costs left “it wholly in the discretion of the assessment officer
as to how costs are assessed by reference to Columns 4 and 5 of the Tariff.”
[10]
Here,
page 70 of the transcript of hearing of the judicial review discloses a clear
enunciation by counsel for the Respondents that his “position is, and always
has been, that this appeal should never have been brought” and that on that
basis he applies “for costs on scale five.” Pages 79 to 82 of the transcript disclose
a strong objection by counsel for the Applicants to that request. Paragraph 13
of the Decision briefly delivered the Court’s finding, i.e. the law is clear
that judicial review of interlocutory decisions is not available. Paragraph 16
dismissed the judicial review “with costs to the Respondents.” This latter
phrase was by itself sufficient to trigger the default scale of Column III
costs in Rule 407. The concluding phrase in paragraph 16, i.e. “such costs
to be assessed in the full discretion of the assessment officer,” was
superfluous for the application of Rule 407.
[11]
The
Compact Edition of the Oxford English Dictionary, 1987, defines s.v.
“full” as “3. Complete scope, entire range…completeness, fullness”, and defines
s.v. “discretion” as “4. Liberty or power of deciding,
or of acting according to one’s own judgment or as one thinks fit; uncontrolled
power of disposal” and “b. Law. The power of a court of justice, or person
acting in a judicial capacity, to decide, within the limits allowed by positive
rules of law, as to the…remedy to be applied, or in civil causes how the costs
shall be borne, and generally to regulate matters of procedure and
administration.” John Burke, Jowitt’s Dictionary of English Law, 2d. ed.
(London: Sweet & Maxwell Limited, 1997) defines s.v. “discretion” as
“a man’s own judgment as to what is best in a given case, as opposed to a rule
governing all cases of a certain kind.” Bryan A. Garner, Black’s Law
Dictionary, Ninth Edition, defines s.v. “discretion” as “2.
Individual judgment; the power of free decision-making.”
[12]
These
definitions were not made with Federal Court costs or the Decision in mind.
However, I might apply them to conclude that the term “full discretion” means
an assessment of costs unfettered by the restriction to Column III in Rule 407.
To conclude otherwise might be to consider said term is wasted space in the
award of costs and of no consequence.
[13]
The
wording of an award of costs sometimes confirms existing jurisdiction. For example,
the terms “costs” and “costs according to the Tariff” have the same effect. As
well, the terms “costs” and “costs to be assessed if the parties cannot agree
upon them” have the same effect. That does not mean that words in an award
of costs additional to the core words, “costs allowed”, which are the essential
element of the Court’s Rule 400(1) discretion, are always irrelevant or
superfluous. The award of costs in Eli Lilly above gave me full
discretion within Columns IV and V. The Respondents’ position here
presumably precludes the possibility of solicitor-client costs or lower
(Columns I, II, III or IV) costs because of its strict focus on Column V costs.
Rule 400(1) discretion was broad enough for the Court to have discarded
the respective and clear suggestions of the Appellant and the Respondents by
substituting its own parameters for costs. I think that is exactly what the
Court did. However, although I think the award of costs is the otherwise
scenario contemplated by Rule 407 and would permit costs to range from Column I
to solicitor-client costs in my discretion, I find it sufficient to
confine my considerations to the Column III and V allowances respectively
argued by the parties.
II. Individual Items of Costs
A. The Respondents’ Position
[14]
The
Respondents noted that the transcript of the appeal hearing below recorded
their objection to the interruption and loss of its third day further to the
Applicants’ insistence, contrary to clear jurisprudence, on a judicial review
of an interlocutory decision. The remote location, i.e. Fort Smith, NWT, of the
appeal hearing aggravated the inconvenience for the Respondents. This judicial
review application was brought on an expedited basis and required a number of
interlocutory steps, i.e. motions, conferences and directions. These circumstances
mean that Column III costs are grossly inadequate and therefore Column V costs
are warranted. Alternatively, maximum Column III costs should be allowed.
[15]
The
Respondents claim the mid-range Column V (all fee item claims in this paragraph
are under Column V) value of 10 units ($120 per unit) for counsel fee item 2
(Respondents’ Record). They argued that the importance and complexity of the
issues and hearing warrant claims of 10 units and 5 units per hour
respectively for fee items 13(a) (preparation for hearing / available range = 4
– 11 units) and 14(a) (attendance at hearing / available range = 3 – 5 units
per hour). Fee item 15 (written submissions / available range = 5 – 11
units) is claimed at 8 units because the separate submissions requested by the
Court on the nature of the underlying decision resulted in a lengthy document
from the Applicants. Alternatively, fee item 27 (such other services as the
assessment officer may allow) should be allowed at the maximum 5 units. Fee
item 26 (assessment of costs) should be allowed at the maximum 10 units. The
Respondents’ evidence was that disbursements totalling $255 and $40 for
photocopies ($0.30 per page) and agent fees respectively were necessary for
this litigation.
B. The Applicants’ Position
[16]
The
Applicants asserted that Greater Moncton was a remarkably similar case,
i.e. assessment of the costs of judicial review of an interlocutory decision of
a tribunal also dismissed as premature, in which I allowed 6 units under Column
III (available range = 4 – 7 units) for fee item 2. That amount is sufficient
here.
[17]
The
Applicants argued that the 3 units allowed in Greater Moncton under
Column III for fee item 13(a) (available range = 2 – 5 units) would be
sufficient here because the issue of statutory interpretation was not complex
or difficult, i.e. the Applicants and Respondents’ respective Memoranda of Fact
and Law were only 46 and 25 paragraphs. Similarly, 2 units per hour under
Column III would be sufficient for the 3 hours claimed for fee item 14(a) (available
range = 2 – 3 units per hour) and 3 units would be sufficient for fee item 15
(available range = 3 – 7 units), i.e. the respective submissions of the
Applicants and the Respondents were 14 and 8 paragraphs.
[18]
The
Applicants argued further to Rule 408(3) that the Respondents should be denied
fee item 26 costs of the assessment. The Respondents’ improper insistence
on Column V costs unnecessarily complicated and lengthened this assessment of
costs. This was aggravated by their insistence on so proceeding despite the
Applicants’ succinct objections prior to the filing of the bill of costs.
[19]
The
Applicants noted that the Respondents’ evidence did not specify which documents
were photocopied and for what purpose. The claimed amount of $255 may
include materials superfluous to essential court documents and copies for the
client both contrary to Abbott above at paragraph 110 and Halford
above at paragraph 247. The Court in Eli Lilly Canada Inc. v. Apotex Inc.
(2008) 63 C.P.R. (4th) 406 (F.C.) held in paragraph 191 that
photocopies should be taxed at a maximum of $0.25 per page in the absence of
evidence of a higher rate with a commercial outlet. The rate of $0.25 per page
is consistent with practice in several superior courts of record, i.e. NPS
Farms Ltd. v. E.I. Dupont Canada Co., 2008 ABQB 69 at paras. 49-50; Polubinski
v. Twardowski, 2007 BCSC 843 at paras. 10-12 and Mercer v. Abbott,
2008 Carswell Ont. 2729, (Ont. Sup. Ct. Just.) at para. 21. A
reduced allowance of $170 would be sufficient.
[20]
The
Applicants argued that filing agent fees should be reduced from $40 to $10 for
the December 8, 2008 filing of Respondents’ Record, but the other amounts of
$10 and $20 disbursed on December 19, 2008 should be disallowed because neither
the court record nor the Respondents’ evidence confirm any such filings.
[21]
The
Applicants argued generally that the Respondents’ claim for counsel fees should
be reduced from 88 units ($120 per unit) under Column V to 18 units under
Column III resulting in $2,160 plus applicable taxes. The claimed disbursements
of $321.49 should be reduced to $206.49 plus GST. The Applicants should be
awarded costs of the assessment further to Rule 408(3) of 2 units plus
photocopying costs to be set off against the Respondents’ assessed costs
pursuant to Rule 408(2).
C. Assessment
[22]
I
concluded in paragraph 7 of Starlight v. Canada, [2001] F.C.J. No. 1376
(A.O.) that the same point in the ranges throughout the Tariff need not be used
as each fee item for the services of counsel is discrete and must be considered
in its own circumstances. As well broad distinctions may be required between an
upper versus lower allowance from available ranges.
[23]
My
findings in Halford above, 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] F.C.J. No. 342 and Abbott
above 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 inclusive of Aventis above,
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.,
[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.”
[24]
I
have read the record and the transcript of the hearing of the judicial review.
Although the Respondents’ position before the lower tribunal on the
jurisdiction of the Court concerning judicial review of interlocutory decisions
appeared complete, they still had to prepare a record and submissions for the
Court which were clear on the state of the hearing below and the relevant case
law. I find the 10 units claimed for fee item 2 appropriate.
[25]
The
Respondents’ counsel, having framed the fee item 2 Record, would still have had
to organize his oral presentation and anticipate both the Court’s and his
opponent’s concerns as they arose. However, I doubt that much adjustment of
approach and position was necessary. Given my feeling that the costs award
acknowledged that the circumstances of the judicial review justified more than
the limits of Column III, I do not think that the maximum Column III allowance
for fee item 13(a) is appropriate. I also do not think that the maximum
Column V value is appropriate. I allow 8 units for fee item 13(a) which is
in the middle and upper ranges respectively of Columns V and IV. I allow the
maximum value of 5 units per hour under Column V for fee item 14(a). I allow the
mid-range value of 8 units under Column V claimed for fee item 15.
[26]
I
refuse the Applicants’ request for costs. The Respondents did not file rebuttal
submissions. I allow 7 units under Column V for fee item 26 to the Respondents.
This is 1 unit less than my inclination for this service as I think that the
circumstances below of the filing agent fees caused unnecessary work for the
Applicants.
[27]
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 reasonably necessary costs and the right of
an unsuccessful litigant to be shielded from excessive or unnecessary costs.”
The proof here was less than absolute. I allow $205, an amount which should
also preclude costs associated with the orders silent on costs.
[28]
The
Court did not ask for additional submissions at the conclusion of the hearing
on December 16, 2008. Three bicycle courier invoices were appended to the
initial filed bill of costs. They addressed the Notice of Appearance filed
November 26, 2008 ($10), the Written Submissions on the nature of the decision
below filed December 15, 2008 ($20) further to the Direction dated December 8,
2008 and the Respondents’ Record filed December 8, 2008 ($10). These invoices
were not part of the Respondents’ affidavit supporting the bill of costs. The
latter exhibited a computer log attributing the former two amounts to December
19, 2008, a date on which no steps apparently occurred. I allow the $40 as
presented for filing agent fees.
[29]
The
amended bill of costs of the Respondents, presented at $13,315.56, is assessed
and allowed at $6,333.06.
“Charles
E. Stinson”
Vancouver, B.C.
September
23, 2009
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