Date: 20070706
Docket: T-2682-87
Citation: 2007 FC 716
Ottawa, Ontario, July 6, 2007
PRESENT : The Honourable Mr. Justice
O’Keefe
BETWEEN:
SINCLAIR
M. STEVENS
Plaintiff
and
THE
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR
ORDER AND ORDER
O’KEEFE
J.
[1]
At
the end of the hearing of this action, the parties made a request to make both
written and oral submissions on costs. The request was granted. After the
written submissions were filed and the oral hearing was held, the parties made
a request to submit further written submissions. Further written submissions
were received by the Court.
[2]
The
plaintiff seeks costs:
1. On a solicitor and
client scale, equalling $289,111 plus disbursements and goods and services tax
(GST);
2. In the alternative,
a lump sum award pursuant to Federal Courts Rule 400(4), equalling $220,000
plus disbursements and GST; or
3. In the further
alternative, costs under Column V of Tariff B of the Federal Court Rules,
equalling $144,540 plus disbursements and GST.
[3]
The
defendant submits that the plaintiff should be awarded his costs in this action
in accordance with Column III of Tariff B, as this is not an exceptional case,
and there are no special circumstances which merit the exercise of the Court’s
discretion under Rule 400 to increase the tariff fees. The defendant also
submits that the costs related to the access to information request should not
be included in the plaintiff’s cost award. The defendant noted that the
plaintiff’s calculations do not set off the $8,540.43 owed by the plaintiff to
the defendant as a result of the defendant’s success in Court files A-263-97 and
T-2682-87.
[4]
The
parties have not agreed on the amounts for any of the proposed bills of costs.
At the oral hearing, counsel for the defendant stated that the bill of costs
should be assessed because of the vagueness in the description of the billed
services, the number of lawyers on the file, the lack of dockets, and the
number of hours claimed.
[5]
Two
issues must be resolved with respect to the matter of costs, namely, the type
of costs and how the amount of costs is to be determined.
[6]
Rule
400 of the Federal Courts Rules, 1998 states:
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400.(1)
The Court shall have full discretionary power over the amount and allocation
of costs and the determination of by whom they are to be paid.
(2) Costs may be awarded to or against the Crown.
(3) In exercising its discretion under subsection (1), the
Court may consider
(a) the result of the proceeding;
(b) the amounts claimed and the amounts recovered;
(c) the importance and complexity of the issues;
(d) the apportionment of liability;
(e) any written offer to settle;
(f) any offer to contribute made under rule 421;
(g) the amount of work;
(h) whether the public interest in having the proceeding
litigated justifies a particular award of costs;
(i) any conduct of a party that tended to shorten or
unnecessarily lengthen the duration of the proceeding;
(j) the failure by a party to admit anything that should
have been admitted or to serve a request to admit;
(k) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive
caution;
(l) whether more than one set of costs should be allowed,
where two or more parties were represented by different solicitors or were
represented by the same solicitor but separated their defence unnecessarily;
(m) whether two or more parties, represented by the same
solicitor, initiated separate proceedings unnecessarily;
(n) whether a party who was successful in an action
exaggerated a claim, including a counterclaim or third party claim, to avoid
the operation of rules 292 to 299; and
(o) any other matter that it considers relevant.
(4) The Court may fix all or part of any costs by reference
to Tariff B and may award a lump sum in lieu of, or in addition to, any
assessed costs.
(5) Where the Court orders that costs be assessed in
accordance with Tariff B, the Court may direct that the assessment be
performed under a specific column or combination of columns of the table to
that Tariff.
(6) Notwithstanding any other provision of these Rules,
the Court may
(a) award or refuse costs in respect of a particular issue
or step in a proceeding;
(b) award assessed costs or a percentage of assessed costs
up to and including a specified step in a proceeding;
(c) award all or part of costs on a solicitor-and-client
basis; or
(d) award costs against a successful party.
(7) Costs shall be awarded to the party who is entitled to
receive the costs and not to the party's solicitor, but they may be paid to the
party's solicitor in trust.
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400.(1) La Cour a le pouvoir
discrétionnaire de déterminer le montant des dépens, de les répartir et de
désigner les personnes qui doivent les payer.
(2) Les dépens peuvent être adjugés à la
Couronne ou contre elle.
(3) Dans l’exercice de son pouvoir
discrétionnaire en application du paragraphe (1), la Cour peut tenir compte
de l’un ou l’autre des facteurs suivants:
a) le résultat de l’instance;
b) les sommes réclamées et les sommes
recouvrées;
c) l’importance et la complexité des
questions en litige;
d) le partage de la responsabilité;
e) toute offre écrite de règlement;
f) toute offre de contribution faite en vertu de la règle
421;
g) la charge de travail;
h) le fait que l’intérêt public dans la
résolution judiciaire de l’instance justifie une adjudication particulière
des dépens;
i) la conduite d’une partie qui a eu pour effet d’abréger
ou de prolonger inutilement la durée de l’instance;
j) le défaut de la part d’une partie de
signifier une demande visée à la règle 255 ou de reconnaître ce qui aurait dû
être admis;
k) la question de savoir si une mesure
prise au cours de l’instance, selon le cas:
(i) était inappropriée, vexatoire ou
inutile,
(ii) a été entreprise de manière
négligente, par erreur ou avec trop de circonspection;
l) la question de savoir si plus d’un mémoire de dépens
devrait être accordé lorsque deux ou plusieurs parties sont représentées par
différents avocats ou lorsque, étant représentées par le même avocat, elles
ont scindé inutilement leur défense;
m) la question de savoir si deux ou plusieurs parties
représentées par le même avocat ont engagé inutilement des instances
distinctes;
n) la question de savoir si la partie qui a eu gain de
cause dans une action a exagéré le montant de sa réclamation, notamment celle
indiquée dans la demande reconventionnelle ou la mise en cause, pour éviter
l’application des règles 292 à 299;
o) toute autre question qu’elle juge pertinente.
(4) La Cour peut fixer tout ou partie des dépens en se
reportant au tarif B et adjuger une somme globale au lieu ou en sus des
dépens taxés.
(5) Dans le cas où la Cour ordonne que
les dépens soient taxés conformément au tarif B, elle peut donner des
directives prescrivant que la taxation soit faite selon une colonne
déterminée ou une combinaison de colonnes du tableau de ce tarif.
(6) Malgré toute autre disposition des
présentes règles, la Cour peut:
a) adjuger ou refuser d’adjuger les dépens à l’égard d’une
question litigieuse ou d’une procédure particulières;
b) adjuger l’ensemble ou un pourcentage des dépens taxés,
jusqu’à une étape précise de l’instance;
c) adjuger tout ou partie des dépens sur une base
avocat-client;
d) condamner aux dépens la partie qui obtient gain de
cause.
(7) Les dépens sont adjugés à la partie
qui y a droit et non à son avocat, mais ils peuvent être payés en fiducie à
celui-ci.
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[7]
Although
the Court is given full discretion over the amount of costs, that discretion
must be exercised properly.
[8]
Solicitor
and Client Costs
The plaintiff requested that he
be granted solicitor and client costs. The jurisprudence of this Court has set
out the parameters for granting solicitor and client costs. In TMR Energy
Ltd. v. State Property Fund of Ukraine, (2005), 339 N.R. 254, 2005
FCA 231, Justice Décary stated at paragraph 4:
I have not been persuaded that costs
should be awarded on a solicitor-client basis. Such costs are generally awarded
only where “there has been reprehensible, scandalous or outrageous conduct on
the part of one of the parties” and “in exceptional cases” (Baker v, Canada
(Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817; 243 N.R.
22, at 864).
[9]
The
plaintiff is relying on the “in exceptional cases” aspect of the test in order
to receive costs on a solicitor and client basis.
[10]
The
plaintiff contends that this is an exceptional case because he was an innocent
party with respect to the Order-in-Council. He was not consulted about the
Order-in-Council and he did not write it. He was innocent as it was the
defendant who picked the wrong guidelines.
[11]
The
plaintiff also referred to Capital Vision Inc. v. Canada (Minister of
National Revenue-MNR) (2003), 241 F.T.R. 121, 2003 FC 1253, wherein
Justice Heneghan stated at paragraphs 19 and 20:
As noted above in Young, supra,
such costs are generally awarded in the face of “reprehensible, scandalous or
outrageous conduct” by one of the parties. There is no such conduct here and
the Applicants acknowledge as much. However, solicitor-and-client costs can
also be awarded to indemnify an innocent party. The Applicants submit that the
Minister acted oppressively in issuing the new requirements without seeking
prior judicial authorization and, by doing so, put the Applicants to the
necessary expenses of challenging that decision by way of application for
judicial review.
In my opinion, these submissions by the
Applicants do not meet the test of showing that an award of
solicitor-and-client costs is justified here.
[12]
Although
the Order-in-Council was flawed, in the present case, there is no evidence that
the flaw was anything but an error on the part of the officials. I am not
satisfied from the evidence that special circumstances exist in this case so as
to warrant an award of solicitor and client costs.
[13]
Lump
Sum Award Pursuant to Federal Courts Rule 400(4)
I am not prepared to issue a
lump sum award as I am of the view that the same part of Tariff B can be used
to fairly set the amount of costs that the plaintiff should receive. I have
considered the jurisprudence cited by the plaintiff before coming to this
conclusion. Although the action consumed much time, the issues, although
complex, were not as complex as suggested by the plaintiff.
[14]
Award
of Costs
I am of the opinion that the
plaintiff should be awarded his costs at the high end of Column V of Tariff B,
plus a lump sum of $20,000 plus disbursements and GST.
[15]
The
Court has held that where there are special considerations, party and party costs
can be granted in excess of Column III and in excess of Tariff B, pursuant to Federal
Courts Rule 400(4). The Court has looked at the factors set out in Federal
Courts Rule 400(3) in considering whether there are special considerations
to justify a higher cost award. In the present action, the plaintiff submitted
that the following factors support an increased amount of costs:
1. The result in the
proceeding
The plaintiff
completely won his judicial review and had the Commission report set aside.
2. The importance
and complexity of the issues
The issues were
very important to the plaintiff as the Commission report effectively ended his
political career. The issues raised were ones of first instance and there were
no precedents except perhaps Landreville v. The Queen (No. 2)
(1977), 75 D.L.R. (3d) 380 (F.C.T.D.), which involved a different context.
3. The amount of
work
There is no doubt
that a large quantity of work was expended on the file.
4. Whether
the public interest in having the proceeding litigated justifies a particular
award of costs
I am of the view
that the issues in this judicial review as they related to the conduct of a
public inquiry needed to be determined.
[16]
In
addition to these factors, the Court is entitled to look at other considerations.
I have stated that this was a lengthy case and that the error in the Order-in-Council
was not of the plaintiff’s making. The plaintiff had no choice but to pursue
the action in order to have the matter clarified. The fact that the Order-in-Council
had no definition of conflict of interest was raised before the Commission, but
not corrected.
[17]
For
all of the above reasons, I would grant the plaintiff his costs at the high end
of Column V of Tariff B, plus a lump sum of $20,000 plus disbursements and GST.
[18]
The
bill of costs shall not include any amounts for the access to information
matters, as these matters were already dealt with by the Courts.
[19]
The
Court retains jurisdiction to deal with the issue of second counsel if the
parties cannot agree.
[20]
As
the defendant has not seen the dockets, the plaintiff should make these
available to the defendant within 10 days of the date of these reasons.
[21]
The
parties shall have 30 days after the receipt of the dockets and records to
agree on a bill of costs in accordance with Column V of Tariff B. If agreement
cannot be reached in this period of time, the parties shall within 10 days,
apply to me with respect to the outstanding issues.
[22]
This
process is being implemented in order to avoid spending more time on an
assessment. However, if agreement cannot be reached, then the motion will have
to be made to me to determine how the matter will be finalized.
[23]
I
retain jurisdiction to deal with this matter.
ORDER
[24]
IT
IS ORDERED that:
1. The plaintiff shall
have his costs at the high end of Column V of Tariff B, plus a lump sum of
$20,000 plus disbursements and GST.
2. The bill of costs
shall not include any amounts for the access to information matters as these
matters were already dealt with by the Courts.
3. The Court retains
jurisdiction to deal with the issue of second counsel if the parties cannot
agree and to deal with any other outstanding issues as noted in paragraph 22 of
these reasons.
4. As the defendant has
not seen the dockets, the plaintiff should make these available to the
defendant within 10 days of the date of these reasons.
5. The parties shall
have 30 days after the receipt of the dockets and records to agree on a bill of
costs in accordance with Column V of Tariff B. If agreement cannot be reached
in this period of time, the parties shall within 10 days, apply to me with
respect to the outstanding issues.
“John
A. O’Keefe”
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