Date: 20070823
Docket: T-105-06
Citation: 2007 FC 849
BETWEEN:
D.
JOHN HUSBAND
Applicant
and
THE
CANADIAN WHEAT BOARD
Respondent
ASSESSMENT OF
COSTS – REASONS
Charles
E. Stinson
Assessment
Officer
[1]
The
Court dismissed with costs this application for judicial review in respect of a
letter from the Respondent characterized by the Applicant as denial of an
export licence for feed barley. I issued a timetable for written
disposition of the assessment of the Respondent's bill of costs which claimed some
counsel fees at the maximum values available in the Tariff and others at the
minimum values.
I. The Respondent's Position
[2]
The
Respondent argued that its success in rebutting all of the Applicant's
arguments warrants allowance of the fair and reasonable costs claimed. The
Court's decision discloses complex issues involving a thorough analysis of the
enabling legislation for the Canadian Wheat Board, relevant regulations and
export licensing policies and procedures. As well, there were constitutional, Charter
and North American Free Trade Agreement issues. All of this necessitated
significant research and preparation time for both written materials and oral
preparation. This proceeding had serious implications for the Respondent's
exports licensing scheme and would have substantially affected its operations
far beyond the Applicant's single matter.
[3]
The
Respondent noted that the hearing took place in Regina for the
convenience of the Applicant. The claim of the maximum 5 units ($120.00 per
unit) under item 24 for the travel time of counsel from Winnipeg is modest.
The circumstances of this case warranted higher costs than those presented in
the bill of costs, but the Respondent has limited its claims to a fair and
reasonable amount of $5,294.70, in deference to the fact that the Applicant is
a Canadian grain farmer.
II. The Applicant's Position
[4]
The
Applicant argued that the record indicates that he had not intended to assert a
constitutional challenge to the validity of the Respondent's enabling
legislation and regulations. He intended only a challenge of the manner of
the Respondent's application of its export licensing powers under the
legislation. The Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e),
reprinted in R.S.C. 1985, App. III, provides that "no law of Canada shall be
construed or applied so as to … deprive a person of the right to a fair hearing
in accordance with the principles of fundamental justice for the determination
of his rights and obligations." Authorson v. Canada (A.G.), [2003]
2 S.C.R. 40 at 60, held that s. 2(e) applies only to guarantee the
fundamental justice of proceedings before any tribunal or administrative body
that determines individual rights and obligations. The Applicant argued
that this guarantee of proceedings means something beyond simple access to the
Federal Court.
[5]
The
enabling legislation for the Respondent makes it a federal government tribunal
or administrative body without a mandate to determine individual rights and
obligations. The fundamental difference between administrative tribunals
and courts was defined in Ocean Port Hotel Ltd. v. British Columbia (General
Manager Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781
at 794, i.e. superior courts are constitutionally required to have objective
guarantees of both individual and institutional independence whereas
administrative tribunals are created precisely to implement government policy.
The Applicant argued that the judicial review hearing in the Federal Court was
a proceeding before a tribunal that determines individual rights and
obligations, but the request to the Respondent for an export licence was not
because there is no mandate for the Respondent as a human rights administrative
tribunal. That is, the judicial review hearing was a right guaranteed to the
Applicant by the Canadian Bill of Rights. The term "guarantee"
referred to by the Supreme Court of Canada means that costs are the
responsibility of the federal government and to be assessed at nil dollars. The
Applicant argued that case law and the equality rights asserted in the Canadian
Bill of Rights means that costs should be assessed at nil dollars. The
Court did not award costs in Jackson v. Canada (A.G.), [1997] F.C.J. No.
1603 (F.C.T.D.), a proceeding for judicial review very similar to the Applicant's
case. R. v. Drybones, [1970] S.C.R. 282 at 297, held that the Canadian
Bill of Rights, s. 1(b), means that no individual is to be treated more
harshly than another under a law of Canada.
[6]
The
Applicant argued that the 3 units and 1 unit claimed respectively for items
10 (preparation) and 11 (attendance on a pre-hearing conference) are not
valid costs. The award of costs did not include the requisite direction of the
Court to permit the 5 units claimed under item 24 for travel by counsel to the
hearing venue. As well, proceedings for judicial review further to national
legislation should be available in any province free of the burden of assessed
cost for travel from another province.
III. Assessment
[7]
I
did not outline the Applicant's submissions on the Rule 410(2) requirement that
the party bringing a motion for an extension of time shall bear the associated
costs because the Respondent did not present a claim for any such costs. I give
no weight to the Applicant's submissions concerning assessment at nil dollars
because I view them as a challenge to the Respondent's entitlement to assess
costs at all. The Court has already exercised its Rule 400(1) discretion for
costs in favour of the Respondent. My jurisdiction flowing from Rule 405 does
not permit me to interfere with that exercise of discretion and instead
requires that I determine a dollar amount for said award of costs.
[8]
I
disallow item 24 further to my conclusion in Marshall v. Canada, [2006]
F.C.J. No. 1282 (A.O.) at para. [6], that there must be a visible direction by
the Court to the assessment officer specifically authorizing fees for the time
of counsel in transit. Such a direction is not however necessary to assess the
associated travel disbursements. A case conference is part of litigation as a
whole. The judgment for costs therefore creates an entitlement for the
associated items 10 and 11, which I allow at the minimum values claimed.
[9]
I
concluded at para. [7] in 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 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. I agree that this
litigation posed serious implications for the operations of the Respondent
beyond the single interest associated with this Applicant. I allow item 2
(preparation of hearing record/available range = 4-7 units) at 6 units. I allow
items 13 (preparation for hearing) and 14(a) (attendance at hearing) at the
maximum 5 units and 3 units per hour respectively as claimed. I allow item 26
(assessment of costs) at the minimum 2 units claimed. Claimed disbursements and
GST of $75.00 and $4.50 respectively are allowed. The Respondent's bill of
costs, presented at $5,294.70, is assessed and allowed at $ 4,531.50.
"Charles
E. Stinson"
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