Date: 20071102
Docket: T-567-06
Citation: 2007 FC 1136
Ottawa, Ontario, this 2nd day of November, 2007
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
TERRY
RANDOLPH THOMPSON
Applicant
and
LEQ'A:MEL
FIRST NATION COUNCIL
Respondent
FURTHER REASONS AND JUDGMENT
[1]
I
issued Reasons in this matter on July 5, 2007 and directed the parties to make
their submissions on costs in a motion in writing. This they have now done.
Matters have been delayed by the unfortunate death on July 3, 2007 of counsel
for the Respondent.
[2]
The
Applicant who succeeded on the merits has submitted a bill of costs based on Column
III of Tariff B. I believe that is a reasonable classification of the matter.
Although not factually complex, the case involved important issues of
constitutional law. The only error, I believe, is in the claim by the Applicant
under item 15 of Tariff B for “preparation of written argument.” I am unaware
that any written argument was prepared or filed in this matter, other than the
Memorandum of Fact and Law which of course is covered under another item. I
would therefore deduct the seven units claimed under Article 15, making a total
of permitted units of 58.5.
[3]
The
Respondent, however, asserts that the Applicant should be disentitled to costs
and in fact should have costs assessed against him. The Respondent asserts that
the Applicant rejected a settlement, and the proceeding was conducted in a
manner which unnecessarily increased the costs of both parties.
[4]
First,
with respect to the settlement issue, the Respondent invokes paragraph 420(2)(a)
of the Rules which says that:
…if the plaintiff obtains a judgment less
favourable than the terms of the offer to settle, the plaintiff shall be
entitled to party-and-party costs to the date of service of the offer and the
defendant shall be entitled to double such costs, excluding disbursements, from
that date to the date of judgment….
The Respondent relies on an offer made in a
letter of May 15, 2006 to counsel for the Applicant. It thereby proposed a settlement
whereby the parties would seek an order of the Court which would require the
Respondent to try to amend the election regulations, section 4, by deleting the
requirement that a voter “reside in the Canadian traditional Sto:ló territory.”
The offer contemplated that there would be wide consultation among members of
the Leq’á:mel First Nation in which the Applicant himself would participate. A
draft of new election regulations would then be submitted to a referendum which
would pass if 50% plus 1 of all Leq’á:mel First Nation members, regardless of
their place of residence, voted in favour. The Respondent quickly rejected this
offer. In my view, such an offer would not have been more favourable to the
Applicant than the judgment which I will issue. Given the requirements of the
existing election regulations, I fail to see how those regulations could be
amended by a majority of 50% plus 1 of all members, regardless of their place
of residence. As we have seen above, section 24.3 of those regulations requires
for amendments to the election regulations a majority of 60% of the eligible
electorate. Section 4 of those regulations also prohibits non-residents of the CTST
from voting. The mere agreement of the parties that the regulations could be
amended without compliance with section 24.3, the existing law, would have had no
effect. Nor could a Court direct such a result unless the Court were first to
make a finding of invalidity of the regulations as they now stand, including
the invalidity of section 24.3. So legally the offer was meaningless or would
have, in any event, required a court hearing and determination of both the
invalidity of section 4 and section 24. On the other hand, the judgment to be
now issued is based on a finding of invalidity of sections 3 and 4 in respect
of the residency requirement, and contemplates that if the band has not
succeeded in amending its regulations properly, those regulations will become
void as of August 1, 2008. So in spite of the empty promise of a change to the
regulations as contemplated by the offer to settle, the Applicant by persisting
with the court case has achieved the certainty of ultimate success in having
the regulations set aside. In the meantime, of course, the Respondent can make
its best efforts to have the regulations properly amended in accordance with
their existing requirements. The Respondent suggests that because in my reasons
I did not accord some of the remedies requested by the Applicant, the Applicant
did not fully succeed. The central issue for the Applicant was having the
regulations found constitutionally invalid, and that he will have achieved. The
fact that I declined some discretionary remedies such as setting aside the past
election or ordering the band to legislate does not detract from the
substantive victory of the Applicant.
[5]
The
Respondent also complains of various actions on the part of counsel for the
Applicant which caused unnecessary delays. These mostly consisted of refusals
to consent to late filing by the Respondent or in one case, a futile attempt by
the Applicant to file further documents shortly before the hearing. In my view,
these late filing materials were for the most part of no help to the Court in
the resolution of the case. If either party had a grievance upon the hearing of
the orders for late filings made necessary by refusals to consent, they should
have asked the presiding judge or Prothonotary for an order as to costs on
those occasions.
[6]
The
one serious complaint of the Respondent, in my view, pertains to the request by
counsel for the Applicant for an adjournment one day before the hearing date
long established for the hearing of the application. On September 20, 2006 the
Court had ordered that this application be set down for a hearing in Vancouver on December
19 and 20, 2006. On December 18, 2006, counsel for the Applicant sent a fax to
the Court and to counsel for the Respondent advising that she had taken ill
suddenly and would not be able to attend the above noted hearing. Among other
things she said in her letter were the following:
In August 2006 I became very ill and I’ve
been under my physicians care since then…I regret any inconvenience caused by
this situation but my health is such that I can have many productive weeks only
to fall ill again suddenly, as occurred last week…
Sympathetic as one may be for counsel
suffering such illness, the letter itself suggests that she had ample warning
that she would probably not be able to conduct the argument on the appointed
days. She indicates that she had been ill since August and under her physician’s
care. She refers to having “fallen ill again suddenly…last week.” In those
circumstances, it is either incumbent on counsel to find other counsel to
replace them or give the Court and opposing counsel as much warning as
possible. It does not appear to me that she did this. Nor has her version of
events been supported in any way by affidavit, either at the time of the
adjournment or in response to the Respondent’s written submission on this
motion. On the face of her own letter, it appears that she failed to alert the
Court and opposing counsel in a timely manner that she could not proceed.
[7]
In
the exercise of my discretion I will for this reason reduce the number of units
billable by the Applicant to 50.
JUDGMENT
IT IS HEREBY ORDERED AND
ADJUDGED THAT:
(1)
Paragraphs
3.1(b) and 4.1(b) of the Leq’á:mel First Nation election regulations and procedures
be declared invalid, effective August 1, 2008; and
(2)
The
Applicant be awarded costs on the basis of 50 units of counsel fees with taxes
calculated thereon, and the disbursements as set out in its Bill of Costs filed
on September 28, 2007 as part of its motion record in this matter.
“Barry L. Strayer”
Deputy Judge
Email this Content