Date: 20071116
Docket: T-740-06
Citation: 2007 FC 1203
Ottawa, Ontario, this 16th day of November,
2007
PRESENT: The Honourable Barry L. Strayer, D.J.
BETWEEN:
GAIL ESTENSEN, EXECUTRIX OF
THE
LATE RALPH ESTENSEN
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
FURTHER REASONS
FOR JUDGMENT AND JUDGMENT
[1]
On
May 22, 2007, I issued reasons in this matter and indicated that I would set
aside the suspension of the Applicant’s accreditation, issued on April 3, 2006,
by the CFIA and terminate any further proceedings in respect of cancellation
pursuant to that notice. At the end of argument of this application, counsel
for the Applicant asked that I not dispose of costs until counsel had had an
opportunity to see my reasons. I therefore did not issue judgment but directed in
my reasons that if counsel could not agree within 30 days on costs, the
Applicant should bring a motion in writing in respect of costs. Unfortunately,
prior to the lapse of those 30 days, the Applicant died, on June 16, 2007. This
sad development has delayed the motion in respect of costs.
[2]
In the present motion, Gail Estensen (hereafter
the new Applicant), the Executrix of the estate of the original Applicant,
Ralph Estensen, asks that she be substituted as Applicant and be so indicated
in the Style of Cause. I have so directed.
[3]
The new Applicant asks that the Court order
higher than normal costs, mainly for two reasons. First it is argued that the
CFIA acted wrongly in revoking its first cancellation of the Applicant’s
accreditation and then immediately suspending his accreditation in a
commencement of new cancellation proceedings. As I indicated in paragraph 16 of
my reasons, based on authoritative jurisprudence, an administrative body in
these circumstances is not precluded from treating its first decision as a
nullity and is not functus officio so as to be unable to commence a new
proceeding. I therefore am not able to attribute fault in this respect to the
CFIA which could have an effect on costs. I have dealt with the costs consequences
of that revocation in my judgment in T-320-06, the application for judicial
review of that first decision.
[4]
The new Applicant also stresses the significance
of the date, November 2, 2006 on which the Tebrinke decision was issued.
In my reasons I concluded that after that decision was taken the CFIA was bound
by issue estoppel and could not relitigate the question of whether the OTM head
ever bore a tag issued by the Applicant. After a careful hearing on that
matter, a Review Tribunal had concluded that it was not possible to find that
the offending head ever belonged to any of the
cattle shipped by
Mr. Trebenke to the United States and previously approved by the Applicant. The new Applicant takes
the position that once the November 2 decision was released, the CFIA had no
legitimate basis upon which it could oppose the Applicant’s second application
for judicial review. I disagree. There was certainly an arguable position for
the CFIA to take in this case that neither issue estoppel, res judicata,
or abuse of process would apply in this situation. While I found that issue
estoppel did apply it was certainly not a foregone conclusion. In exercising my
discretion as to costs, therefore, I do not fault the Respondent for having
waited to make its legal arguments at the hearing of this application for
judicial review.
[5]
I also note that the Applicant caused some
delays for having wrongly named certain persons and the CFIA as Respondents.
Also troubling was the long delay in the Applicant seeking to file in the Court
the Tebrinke decision together with a new argument based on functus
officio, issue estoppel, and abuse of process, and certain authorities in
support. I noted in my reasons at paragraph 12 that this delay of over five
months posed difficulties for the Respondent and for the Court and I will take
this into account as well in the exercise of my discretion. I believe these
matters all fall within paragraph 400(3)(i) and (k) of the Rules
of Court as proper subjects for my discretion.
[6]
I do not have sufficient information in front of
me to make a meaningful assessment of costs on a lump sum basis. I will
therefore give directions as to the taxation of the costs. Taxation will be
directed on the basis that the new Applicant is entitled to costs, with counsel
fees fixed under Tariff B at the maximum number of units allowed under Column
III including costs of a second counsel at the hearing as provided by paragraph
14(b) of Tariff B, plus disbursements and applicable taxes.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT:
1.
The suspension of the Applicant’s accreditation ordered
by the CFIA on April 3, 2006 be terminated as of November 2, 2006;
2.
All further proceedings as notified to the
Applicant by the CFIA’s letter of April 3, 2006 in respect of the animal bearing
the CCIA eartag 271 629 357 be terminated;
3.
Costs be awarded to the Applicant and taxed on
the basis that counsel fees be allowed under Tariff B with the maximum number
of units permitted under Column III thereof, including a fee for second counsel
at the hearing pursuant to paragraph 14(b) of the table under Tariff B; plus
disbursements and applicable taxes.
“B.L.
Strayer”
Deputy Judge
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