Date: 19990521
Docket: A-310-97
| IN THE MATTER OF the Canadian Labour Code (Part I - Industrial Relations) and complaints of unfair labour practices files pursuant to Section 97(1) thereof by Garry Lloyd Ager, complainant; alleging violations of Section 37 of the said Code by International Brotherhood of Locomotive Engineers, and Canadian Council of Railway Operating Unions, Respondents; Canadian National Railway Company (CN Rail), employer. Board files: 745-5124, 745-5141, 745-5177, 745-5245 and 745-5507. |
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BETWEEN:
GARRY LLOYD AGER
Applicant
- and -
INTERNATIONAL BROTHERHOOD OF
LOCOMOTIVE ENGINEERS ET AL
#2 - 3012 Louise Street
Saskatoon, Saskatchewan
S7J 3L8
Respondents
- and -
CANADIAN NATIONAL RAILWAY COMPANY (CN RAIL)
Employer
ASSESSMENT OF COSTS " REASONS
CHARLES E. STINSON,
ASSESSMENT OFFICER
[1] These proceedings for judicial review addressed complaints concerning the conduct of the Respondent union relative to whether it should have submitted matters dealing with general holidays to a formal ratification vote. By Judgment dated June 23, 1998, the Federal Court of Appeal dismissed the application with costs, if required. On August 28, 1998, the Respondent filed this party and party Bill of Costs:
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| ITEM NUMBER
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DESCRIPTION OF SERVICE
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HOURS
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UNITS
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| 18
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Preparation of Appeal Book
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1
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| 19
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Preparation of Memorandum of Fact and Law; Legal Research; Review of Applicant's materials; Preparation of Brief on Costs
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7
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| 22
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Counsel Fee on Hearing Appeal
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2
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6
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| 24
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Travel from Ottawa to Vancouver to attend Appeal
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5
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| |
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| |
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TOTAL
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19
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269.71
3.60
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13.55
492.25
.48
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1,214.75
7.00
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$2,001.34 $140.09 (GST)
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$2,141.43
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The Respondent also placed on file copies of statements of account of actual hours billed to the client and pre-billing reports breaking down the dates and individual amounts used to arrive at the subtotals above for items such as Quicklaw and couriers. Copies of the actual invoices and additional details such as the specific purpose for these individual charges were not included.
[2] At the outset of this assessment, the Applicant advised the Registry that he might "challenge the union's position that costs are required". Therefore, I set a timetable for submissions from the parties on this assessment but provided time for the Applicant to apply to the Court. Mr. Ager brought a motion for further relief on costs, but it was dismissed without costs on February 3, 1999. Both sides then confirmed that no further materials were forthcoming.
The Applicant's Position
[3] The Applicant argued that disbursements totalling $2,141.43 were unreasonable in the circumstances. A person directly affected by material (on costs) submitted to the Court should be allowed to view it in the interests of procedural fairness under the rules of natural justice. The Applicant's travelling time of 4 hours by skytrain to view the material, which could have been served with the other material on August 28, 1998, should be deducted from counsel's travelling time by way of a set-off.
[4] The Applicant's submissions regarding the assessment were intertwined with his motion above for further relief on costs. Three of the seven grounds for relief in that motion urged the reduction of disbursements in instances where supporting information such as copies of invoices, airline tickets, hotel bills and the like have not been provided; the consideration of the amount of his union dues deducted in favour of the Respondent union as a factor in assessing costs and the disallowance, because of non-compliance with the Federal Court Rules, 1998, of any amounts associated with the Respondent's Supplementary Book of Authorities " Costs. The Applicant argued that costs should not exceed $1,500.00 because the Respondent had already stated in its July 21, 1998 submission to the Court, which was not removed from the file pursuant to Rule 25.(2) [sic ], that this amount would be appropriate.
The Respondent's Position
[5] The Respondent argued that the Bill of Costs conforms with the Tariff. The travel and lodging, reflecting the requirement for counsel from Ottawa to attend in Vancouver, constitute more than 50% of the $2,143.43 in disbursements and are reasonable in the circumstances of this litigation. The Applicant's history of filing frivolous claims against the Respondent should be a factor in the assessment of costs.
Assessment
[6] Generally, the Applicant opposed any amount for costs. Therefore, I assume that he also opposed the maximum number of units presented for fee items. I do not view this litigation as particularly difficult. Rules 309(2)(h) and 310(2)(f) provide for inclusion of a memorandum of fact and law in the Records filed by each side in a s. 28 proceeding. I allow the minimum 4 units for item number 19. For item number 22, I allow only 2 units for each of the 2 hours presented. I remove the 5 units presented for item number 24 because "the discretion of the Court" referred to in that item does not extend to an "assessment officer" described in Rule 2.
[7] The absence on the record of copies of invoices and receipts does not mean that those charges were not necessarily incurred, nor that no amounts may be assessed: see Carlile v. The Queen.1 Here, a result of nil dollars would be absurd. Nevertheless, I will reduce some of those amounts to reflect the greater discretion vested in an assessment officer when presented with less than absolute proof. There was nothing to suggest that the Respondent should not have used an Ottawa law firm. The amount of $1,214.75 for travel and lodging is modest enough to suggest incorporation of a discount airfare unless counsel had attributed the balance of a full fare to other unrelated business in Vancouver. Although I removed the units for counsel's travel time above, I do not conclude that the wording of item number 24 requires that I preclude an associated disbursement for travel. I allow the $1,214.75. No set-off can occur for the personal travel time of the Applicant because he has not received an award of costs and the element of profit precludes indemnification for personal time.
[8] It may be that the individual amounts for Quicklaw in the pre-billing reports, which add up to the presented total for $269.71, were necessary. In the absence of details, I allow $175.00. Consistent with my Reasons dated March 25, 1999 in T-323-98: Local 4004, Airline Division of Canadian Union of Public Employees v. Air Canada, and in the absence of details, including rate, for the $492.25 presented for photocopies, I allow $260.00. Finally, I note that the amount for facsimile charges in the filed version of the Bill of Costs is somewhat illegible. It could be $13.55 or $15.55. The lower amount of $13.55, which I allow, gives the subtotal of $2,001.34 shown above.
[9] The Respondent's Bill of Costs, presented at $4,041.43, is assessed and allowed at $2,691.59.
_________________________
ASSESSMENT OFFICER
Dated at Vancouver, British Columbia this 21st day of May, 1999.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-310-97
STYLE OF CAUSE: Garry Lloyd Ager
Applicant
| International Brotherhood of Locomotive Engineers et al. |
Respondents
| Canadian National Railway Company (CN Rail) |
Employer
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS - REASONS BY:
CHARLES E. STINSON, ASSESSMENT OFFICER
| DATE OF REASONS: May 21, 1999 |
SOLICITORS OF RECORD:
| Shields & Hunt for the Respondent |
__________________
1 97 D.T.C. 5284.
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