Date: 20071116
Docket: T-320-06
Citation: 2007 FC 1202
Ottawa, Ontario, this 16th day
of November, 2007
PRESENT: The Honourable Justice Barry L.
Strayer, D.J.
BETWEEN:
GAIL ESTENSEN, EXECUTRIX OF
THE
LATE RALPH ESTENSEN
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT and JUDGMENT
INTRODUCTION
[1]
The
moving party in this motion, Gail Estensen (hereafter the new Applicant) in her
capacity as executrix of the Applicant asks that she be substituted as
Applicant and that the Style of Cause be amended accordingly and I have so
ordered. She also asks that the original application for judicial review in
this matter be stayed and that there be an extraordinary award for costs to her
either on a solicitor-client basis or on an otherwise elevated basis under
Tariff B.
FACTS
[2]
The
original application herein was filed on February 21, 2006, seeking judicial
review of a decision of the Canadian Food Inspection Agency (CFIA) dated
February 3, 2006, whereby the CFIA cancelled the Applicant’s accredited
veterinarian agreement with the CFIA. This was an agreement whereby the
Applicant was employed by the CFIA to inspect cattle being shipped to the United
States,
in order to certify that the cattle were qualified for import into that country.
The CFIA, in its notice of cancellation, concluded that the Applicant had
certified an inspection on an export slaughter cattle certificate to the United
States of America “which was false”. By letter of April 3, 2006, however, the
CFIA advised the Applicant that it had revoked the cancellation of his
agreement. It is common ground that the CFIA, upon reviewing the procedure which
it had followed in making the decision of February 3, 2006, in the light of the
subsequent application for judicial review, concluded that there had been
irregularities and a lack of fairness which had probably rendered that decision
a nullity. On the same day as the revocation of the cancellation, it also
notified the Applicant that it had suspended his accreditation again and gave him
notice that there would be a full hearing with a view to permanent
cancellation. The grounds were identical to those stated with respect to the
first suspension and cancellation.
[3]
The
Applicant then commenced a new application for judicial review which became
case number T-740-06. On October 12, 2006, a Prothonotary issued an order staying
the first application, T-320-06, pending the outcome of judicial review
T-740-06.
[4]
I
heard the application for judicial review in T-740-06 and on May 22, 2007, I
issued reasons indicating that I would allow it. I did not issue judgment
because the Applicant wished to make special submissions on costs depending on
the outcome of T-740-06. While in my reasons I asked counsel to make written
submissions on costs, this procedure was delayed by the untimely death of the
Applicant on June 16, 2007. His wife, Gail Estensen, has been appointed Executrix
of his estate and she now brings a motion for costs in T-740-06 as well as this
motion for disposal of T-320-06. Both motions were submitted to me.
[5]
With
respect to a stay in the proceedings in T-320-06 which is requested, I believe
the appropriate remedy is to terminate the proceedings as the order whose
judicial review was sought in the original application no longer exists. I will
therefore simply dismiss the application for judicial review but with costs to
the Applicant.
[6]
The
new Applicant essentially asserts that there should be some extraordinary
provision for costs because the Applicant was unnecessarily put to the cost of
bringing a judicial review application against the decision, which by reason of
the CFIA’s own conduct, was indefensible. I accept that argument. The new
Applicant, however, says that solicitor-client costs would be justified because
the CFIA acted in a “high-handed and arrogant manner”. While the new Applicant
cited the case of Young v. Young, [1993] 4 S.C.R. 3, paras. 65-66, where it
was said that “solicitor-client costs are generally awarded only where there
has been reprehensible, scandalous or outrageous conduct on the part of one of
the parties”, it is clear from the context that the Supreme Court was making there
the usual distinction that solicitor-client costs are generally given only
where there has been misconduct in the conduct of the litigation itself. They
are not justified simply because one party, as here, would have had no arguable
case if the judicial review had gone to a hearing.
[7]
I
do believe, however, that while I cannot compensate through costs the Applicant
or his executrix for his loss of income and harm to his reputation caused by
the spurious first order of cancellation, the subject of this judicial review,
I can try to reduce his out-of-pocket costs for having been forced to bring
this abortive application. I have also kept in mind that the CFIA, in its
decision of February 3, 2006, the one in issue here, stated that the Applicant
had issued a certificate “which was false”, a serious slur on the Applicant’s
reputation pronounced as a conclusion in an admittedly invalid proceeding
forcing the Applicant to contest it.
[8]
On
the basis of the limited information before me to support the request for a
lump sum award, I will in the interest of speed and economy fix an appropriate
amount. It appears to me that counsel for the Applicant and the new Applicant would
have taken three significant steps in this matter: the preparation and filing
of originating documents and an application record, the making of submissions
in response to a status notice on September 13, 2006, and this motion for
termination of the proceedings and costs. On that basis, I will fix costs
including counsel fees of $6,000.00 together with $100.00 disbursements and applicable
taxes.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES THAT:
1.
This
application for judicial review be dismissed with costs to the new Applicant;
2.
The
new Applicant be awarded counsel fees in the lump sum of $6,000.00, together
with $100.00 disbursements, plus the relevant taxes.
“B.L. Strayer”
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