Date: 19990323
Docket: A-941-96
T-554-91
BETWEEN:
CARPENTER FISHING CORPORATION,
DON JOHANNES, KAARINA ETHERIDGE,
SIMPSON FISHING CO. LTD.,
WHITE HOPE HOLDINGS LTD.,
and NORMAN JOHNSON,
Plaintiffs,
(Respondents)
- and -
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA and BERNARD VALCOURT,
MINISTER OF FISHERIES AND OCEANS,
Defendants.
(Appellants)
AND:
T-974-91
BETWEEN:
TITAN FISHING LTD.,
Plaintiff,
(Respondent)
- and -
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, and BERNARD VALCOURT,
MINISTER OF FISHERIES AND OCEANS,
Defendants.
(Appellants)
ASSESSMENT OF COSTS - REASONS
CHARLES E. STINSON
Assessment Officer
[1] A copy of these Reasons has been filed today in Court files No. T-554-91 and
T-974-91 and apply accordingly. The Plaintiffs (Respondents) (hereafter, the Respondents) sought a declaration that the "Current Owner Restriction" in the catch history allocation, relative to a formula to be applied by the Minister of Fisheries and Oceans (hereafter, the Minister) as a policy and general guideline for a quota system for halibut fishing on the west coast of Canada, was unlawful and included a claim for both punitive and exemplary damages. By agreement, the trial Judge split the hearing into two parts: the issue of legality and, if and when illegality was found, the relief. On November 14, 1996, the trial Judge, reported at [1997] 1 F.C. 874, found in favour of the Respondents on the legality issue, declared the Minister's decision in 1990, and other similar decisions, to implement the Current Owner Restriction unlawful and a nullity and directed that the trial must continue on the issues of consequent relief. The Appellants (Defendants) (hereafter, the Appellants), supported by the Intervenor, the Pacific Coast Fishing Vessel Owners Guild, appealed. On December 23, 1997, the Federal Court of Appeal, reported at [1998] 2 F.C. 548, noted that, while a trial Judge may split a trial into several phases, only one Judgment should issue disposing of all issues, allowed the appeal, dismissed both actions and awarded the Appellants their costs here and below.
[2] On August 20, 1998, the Supreme Court of Canada dismissed the Respondents' application for leave to appeal. On November 2, 1998, the Federal Court of Appeal dismissed the Respondents' application for reconsideration of its award of costs. By letter dated November 19, 1998, counsel for the Appellants advised that the Supreme Court of Canada had dismissed an application by the Respondents for reconsideration of its leave decision. At that point, I set a timetable for the exchange of written submissions. Throughout, the Respondents had vigorously opposed disposition in writing and the Appellants had just as vigorously maintained their right to proceed as they chose, in writing, for their own Bill of Costs. Coincidentally, the Respondents were urging the trial Judge to hear the delayed second phase of the trial. The Appellants opposed this on the basis that the Federal Court of Appeal's judgment had disposed of the actions in their entirety. The Respondents had outstanding, before the trial Judge, an application for "directions concerning the procedures to be followed to conclude proceedings on the continuation of the trial of Paragraphs 18 - 36 of the Statement of Claim." On January 27, 1999, the trial Judge issued an oral direction declining to hear the motion because the actions had been conclusively dismissed and he found himself functus officio. The Appellants filed a single Bill of Costs incorporating the costs for all three proceedings. Generally, the Respondents raised three issues: (a) the assessment is premature because the trial is not yet concluded, (b) the trial Judge should conduct the assessment and, in any event, the assessment should be conducted orally and, (c) the costs presented are excessive and should be substantially reduced. Given the events above, only issues (b) and (c) remain outstanding.
The trial Judge should assess costs and, in any event, assessment should be by oral hearing
[3] The Respondents argued that these issues of costs are complex with detailed questions of fact and disputes as to legal issues not suitable for disposition in writing: see Heinze v. Canada, 94 D.T.C. 6352. The Respondents asserted that the Appellants inadvertently, and by their own representations, highlight these elements of complexity. For example, and contrary to the Appellants' position, the individual vessel quota was not based on the personal catch of the halibut vessel owner, but rather on the catch attributed to the licence during the years the current owner of the licence held the licence. As well, the Respondents argued that the trial Judge is in the best position to assess the Respondents' position that the transcripts of examinations for discovery and of trial were of little use at trial. Given the importance and complexities of the issues, the decision of the trial Judge and the findings of the Court of Appeal, the trial Judge should orally assess the costs presented.
[4] The Appellants argued that, given my instructions for written submissions, I had already rejected this position. The Respondents' submissions on complexity are inconsistent. For example, in their Reply filed December 22, 1998 to the bill of costs, they argue at paragraph numbers 17 and 26 that the issues are complex with national importance and yet, at paragraph number 48, they assert that the drafting of the Defence "could not have been a complex, time-consuming and difficult task." The mere presence of complexity, which written submissions would more effectively address, is not sufficient to require assessment by the trial Judge. Any other Assessment Officer would know as well as the trial Judge, and be able to measure their relevance, that examinations for discovery have numerous purposes ie. impeachment of the opposing party's position and disclosure of the other side's case and all possible evidence. As the trial Judge confirmed the complexity of the case, it was helpful to have the trial transcripts available for the Court. They were required for the appeal in any event. The Respondents did not set out any facts supporting a conclusion that any of the transcripts were of little use at trial.
Conclusions
[5] Rule 2 defines "assessment officer" as a judge, prothonotary or referee and "an officer of the Registry designated by an order of the Court". This latter phrase is the source of my authority to assess costs. Rules 2 and 405 do not specify how assignments to assess costs are to occur and they are silent on the jurisdiction to decide on the issue of assignment to the trial Judge raised here by the Respondents. These four cases, TRW Inc. v. Walbar of Canada Inc. 146 N.R. 57 (F.C.A.), Canadian National Railway Company v. Industrial Estates Ltd. (1987) 9 F.T.R. 118 (T.D.), Smerchanski v. M.N.R. [1979] 1 F.C. 801 (F.C.A.) and Hillsdale Golf & Country Club Inc. [1979] 1 F.C. 809, predicated on Rules no longer in effect, held that a Judge would assess costs only in exceptional circumstances. I see nothing in the new Rules suggesting that this principle in the jurisprudence does not still apply. In my experience, the absence of disagreement between litigants concerning complexity is exceptional. In any event, the new Rules maintained the practice of officers of the Registry conducting assessments of costs and I saw nothing in the materials that would have required the trial Judge to take this assessment to the exclusion of other assessment officers. Further, the Respondents' position would have required that the trial Judge assess the costs associated with the Appeal Division. I would not extrapolate the sense of Rule 414, which would appear to assign jurisdiction to review my assessment of the appeal costs herein to the Trial Division, to conclude that the circumstances here are so exceptional as to require that the trial Judge assess the costs.
Rules 400(3) and 409: Factors in Assessing Costs
[6] The Respondents argued that the claim for maximum units in virtually every category in column III of Tariff B is excessive. Under Rule 400(3)(c) concerning the importance and complexity of the issues, the Respondents agree with the Appellants that this case raised issues of national importance. As well as findings of fact concerning the Current Owner Restriction and the associated conduct of the Department of Fisheries, discrimination, lack of approvals, lack of disclosure, imposition inconsistent with the Fisheries Act, denial of procedural fairness, bad faith and lack of regard to the public interest, the trial Judge found as a matter of law that the decision to impose the Current Owner Restriction represented an excess of jurisdiction and a breach of natural justice. Regardless of the Federal Court of Appeal's findings contrary to those of the trial Judge and to the evidence, the success of the Respondents at trial should restrict the allowance to minimum units. Although the issues were important, they were not sufficiently complex to warrant maximum units. The trial, a relatively straightforward review of administrative action, lasted eight days and required only one witness on behalf of the Appellants. The Respondents deny the Appellants' assertion that serious and complex matters prompted careful response and considerable energy and effort at trial. If there was such effort, much of it was wasted on repetitive discoveries shortly before trial. Their timing precluded extensive preparation. As well, the Appellants wasted considerable time by their errors in pleading ie. that the decision was one of policy and the Minister was therefore immune from judicial review, was the ground of appeal, not raised by them at trial, upon which the Appellants succeeded. The fact that other licence holders were not named parties is irrelevant. Contrary to the Appellants' assertions, the Respondents challenged the way in which the decision was made to impose the Current Owner Restriction on licence holders and not the authority of the Minister to establish a quota system.
[7] The Appellants argued generally that the Respondents' various agreements on the importance and complexity of issues undermined the latter's position urging minimum units in the various ranges for fees. The Respondents proceeded by action as opposed to Originating Notice of Motion for judicial review, because of a great number of complex and difficult issues of damages in addition to complex issues of law. It is important to note that the Respondents found it necessary to cross-examine the Appellants' one witness at trial for five days. Under Rule 400(3)(c), the Appellants argued that the legal and factual issues raised by the Respondents were numerous as well as extremely complex and serious and required considerable analysis and work. As well as ensuring that the position of halibut licence holders not named as defendants was considered, the Appellants had to respond to this case in the context of its great public importance as applied to west coast halibut fishing and to possible quotas in other fisheries as well as its potential for substantive interference with the authority of governments in Canada to implement policies in the public interest differentiating between persons. The issues at trial included the authority and jurisdiction of the Minister, the nature and extent of the Minister's responsibility to consult the relevant segment of the public, whether the Minister must personally make the decision, whether the Minister acted for an improper motive, the purposes, objectives and policies of the Fisheries Act and licence conditions, the nature and extent of any duty of fairness or natural justice, the relief to be granted and the authority of the trial Judge to judicially review decisions of future Ministers made after 1990 although the decisions of those Ministers were not directly impugned in this litigation and no evidence was adduced regarding them. The issues on appeal included whether the trial Judge erred in hearing and assessing the evidence on the basis of administrative as opposed to legislative action, whether the trial Judge substituted his discretion for that of the Minister, whether the trial Judge imposed rules of natural justice not applicable because the impugned action was of a legislative nature, whether the establishment of a quota policy is a discretionary decision in the nature of legislative action, whether policy guidelines are subject to judicial review, whether the evidence supported a finding of bad faith on the part of the Minister, whether the Minister considered irrelevant matters, the nature and extent of the Minister's obligation to consult with the public, the permissible purposes for actions under the Fisheries Act, the nature of the Minister's discretion to issue fishing licences, whether a Minister's decision on a policy can be impugned because it may not be the best, wisest or most logical policy and whether the trial Judge could extend his declaration of illegality to all decisions made by various Ministers after 1990. Ultimately, the Federal Court of Appeal did not find any merit in the Respondents' claims.
[8] In paragraph number 26 of their Response filed January 11, 1999, the Appellants asserted that the Respondents "are, however, quite wrong in suggesting that this case raises issues of national or public importance" (it is convenient here to insert my observation that this appears inconsistent with the Appellants' assertion in paragraph number 10 of their Written Representations filed May 29, 1998, that "this case was not only of great importance to the public interest... its potential application to other fisheries ... of great importance also to any government in Canada"). The primary test for leave to appeal to the Supreme Court of Canada is whether the issues raised are of national or public importance. On two separate occasions before that Court, the Respondents failed to meet that test. In the context of Rule 400(3)(d) concerning the apportionment of liability, success was not divided between the parties. The emphasis on the trial Judge's findings is irrelevant given that the Federal Court of Appeal disagreed and dismissed the actions. In several areas, the Respondents misstated the findings of the Federal Court of Appeal ie. success on an issue not raised at trial and whether the Minister's decision was immune from judicial review. Rather, the Appellants expressly pleaded that the issues raised ie. the correctness of the policy decision of the Minister, were not justiciable. The Federal Court of Appeal reached that precise conclusion and noted very limited bases for review.
[9] Under Rule 400(3)(g) concerning the amount of work, the Respondents argued that the lengthy and repetitive discoveries left until the eve of trial clearly indicate wasted time by the Appellants in preparation for a trial in which they called one witness in eight days. The Appellants argued that such vague allegations are not supported by any evidence. The dates of the discoveries, which the Appellants had a right to conduct, have nothing to do with the work required.
[10] Under Rule 400(3)(h) concerning whether the public interest in the litigation justifies a particular award of costs, the Respondents argued that their action in bringing these proceedings advanced that public interest by addressing the limits of immunity for policy and legislative action in Canadian administrative law and the associated standard of review, thereby justifying a minimal award of costs to the Crown. The Appellants argued that the Respondents' real motivation was their self-interest in increasing their earnings by a greater share of the halibut fishing quota at the expense of their competitors. If this was not so, the Appellants would have proceeded by judicial review addressing only the lawfulness of the Minister's decision instead of bringing this action for monetary damages. Although the facts were complex and required considerable effort by the Appellants to address numerous legal arguments and allegations, the Federal Court of Appeal and the Supreme Court of Canada addressed them on the basis of fairly elementary, and not novel, principles of administrative law involving very trite legal issues not raising, in terms of the test for leave to the latter Court, issues of national and public importance (for convenience, I note here that this submission flowing from paragraph numbers 34 - 36 inclusive of the Appellants' Response filed January 11, 1999, is inconsistent with paragraph number 41 of the Appellants' Written Representations filed May 29, 1998, asserting extremely important public interest issues many of which were novel).
[11] Under Rules 400(3)(i) and (k) concerning the conduct of a party affecting the length of litigation, the Respondents argued that the Appellants' assertion that the Respondents' agreement to split the case, thereby unnecessarily lengthening the case, is illogical. The record of pre-trial conferences discloses savings. As well, the trial Judge offered further time to the Appellants for discoveries, which they did not take, and the trial then was held without delay and under the allotted 10 days. The Respondents' assertions on this point highlight the need for oral submissions to sort out this complex issue. Contrary to the Appellants' assertions, the record does not disclose improper conduct by the Respondents in alleging bad faith. The trial Judge made several findings in favour of the Respondents. The Federal Court of Appeal did not examine the evidence considered below. The Crown Appellants below did not ask for the finding of bad faith to be set aside and there was no argument on the appeal concerning palpable and overriding error.
[12] Under Rules 400(3)(i) and (k), the Appellants argued that the Respondents' advancement of allegations of bad faith based solely on innuendo occupied much unnecessary time at trial given the Federal Court of Appeal's finding that that claim was completely unsupported by evidence and entirely without merit. As well, the agreement to split the trial meant that only liability and not damages would be addressed in the first phase. Yet, the Respondents still attempted to lead evidence on damages thereby causing substantial delay.
| Item No. 2: Preparation and filing of defence - 7 units claimed |
| Item No. 3: Amendment of defence necessitated by new claims - 6 units claimed |
[13] The Respondents argued that the minimum of 4 units is sufficient for the defence. The original Statement of Claim is not extensive and does not plead numerous causes of action. The Defence thereto, being a series of denials with very little responsiveness to the claims, could not have been the complex, time-consuming and difficult task asserted. The 6 units claimed for amendments to the Defence are the maximum available in the range and are not less than the maximum as asserted by the Appellants. The first Defence was filed more than two years after the Amended Statement of Claim. The latter's amendments were minor. Thereafter, the Appellants amended their pleadings only once in the face of familiar facts and issues. Therefore, the minimum of 2 units is sufficient.
[14] The Appellants argued that the extensive and numerous causes of action, legal and factual issues raised in several versions of the Respondents' pleadings required complex, time-consuming and difficult work to respond by way of the Defence. The final version of the Respondents' pleading, over double the length of the initial version, addressed a wide variety of allegations including Charter remedies. The Consolidated Further Amended Statement of Claim completely and fundamentally changed their claim. For example, for the first time, they referred to the Current Owner Restriction in the Individual Vessel Quota formula as being part of the formula which caused the discrimination. As well, the Respondents introduced a number of fresh allegations relating to legitimate expectation of consultation, improper considerations, breach of fiduciary duty, misfeasance, negligence and unlawful interference with economic relations. These fundamental changes had a significant impact on the amendments to the Defence and warrant maximum units. The Appellants took the position that the issues raised by the Respondents were not justiciable. Ultimately the Federal Court of Appeal agreed.
Assessment
[15] To reflect the varying challenges as litigation unfolds, the items in Tariff B should be seen as discrete and assessable within their own circumstances. Rule 409 does not require that the same point in a range of units be assigned for all items in a Bill of Costs. For example, pleadings and discoveries, designed to define and narrow the issues, may be difficult, but ultimately leave few and relatively straightforward issues for the trial Judge. Therefore, the former might attract greater units than the latter (for appearance at trial). Here, the contrast between the decisions may be indicative, in hindsight, of difficulties in framing the issues but that is not necessarily determinative of the value to be assigned. This was a regional matter but with some larger implications. There were few, if any, issues that fell away before trial. In these times, there are not many individual fishers with the resources to pursue altruistic tilts at authority. I allow 5 units and 5 units respectively for the defence and for the amendments.
| Item No. 7: 5 units claimed for document discovery for each of 7 individuals |
| Item No. 8: 5 units claimed for preparation for discovery for each of 7 individuals on various dates |
| Item No. 9: 3 units claimed per hour for attendance on discovery for 7 individuals on various dates |
[16] The Respondents argued that the claim for maximum units for each of six Plaintiffs was excessive. As above, the record discloses the absence of extensive or complex documentation. The discovery of documents for the six Plaintiffs was repetitive because the documentation for each was similar. Item No. 7, reading "Discovery of documents, including listing, affidavit and inspection", permits only one claim per proceeding and not a claim for each party on both sides. Something near mid-range such 3 or 4 units would suffice. For Item No. 8, the Respondents conducted 4 of the 11 examinations for discovery on the Appellants' representative, Bruce Turris. A claim of maximum units for preparation for each discovery of the same witness is excessive. Allow the minimum 2 units for all four. The Appellant's lengthy discoveries of the six Respondents were repetitive and yielded little useful evidence. There were rare references at trial to the transcript. Replace the maximum claimed with the minimum 2 units for each of six Respondents. For Item No. 9, the Appellants' supporting evidence, being a brief statement on information and belief that, to the best of their knowledge, counsel confirm the number of hours presented, does not meet the test for proof in Tariff B1(2). For example, 7 hours is claimed for Kaarina Etheridge on May 6, 1996. The notes of counsel for the Respondents, adjusted for adjournments, show 4 hours 58 minutes. Therefore, in the absence of the proof required by the Tariff, no hours may be allowed. In the alternative, reduce the units to zero, or one at the most, to reflect repetitive discoveries of little use. Allow a conservative estimate of 4 hours for each.
[17] For Item No. 7, the Appellants argued that the maximum 5 units claimed is not representative of the actual costs for the time and effort relative to numerous documents in the possession or control of both sides. To properly defend themselves, the Appellants were entitled to discovery of the six Respondents. A similar rationale applies for preparation for discovery. The Appellants' representative was examined five times but preparation is claimed for only four of these because two of them occurred close in time. The elapsed time between the other occasions required preparation each time in the face of the complex and extensive issues and documentation. The Respondents led no evidence to support their assertion that the discoveries were repetitive and yielded no useful evidence. For Item No. 9, the difficult and complex legal and factual issues reflected in the pleadings and decisions of the Court justify maximum units for senior counsel. The purpose of discovery is disclosure and therefore the number of references at trial to transcript is irrelevant. The Respondents' own evidence confirmed that the examination of Kaarina Etheridge occupied 10:00 a.m. to 5:00 p.m. approximately, thereby supporting the claim for 7 hours during which the parties and their counsel worked. The Respondents' evidence does not include counsel's notes of the length of the other examinations, thereby suggesting they tended to support the Appellants' claims. Draw an adverse inference from the absence in the Respondents' evidence of disproof of the durations reflected in the court reporters' invoices and upon which the Appellants relied for the hours presented. The reporters would have had no interest in overestimates or underestimates.
Assessment
[18] The plain reading of the provision for Item No. 7 does not support a discrete allowance for each of an aggregate of parties grouped in a single proceeding. It provides a single indemnity for however many causes of action are advanced. Given the Orders of the Honourable Mr. Justices Rothstein and Rouleau dated June 5 and October 2, 1995, respectively consolidating Court files No. T-554-91 and T-974-91, I will not allow two claims. I examined the affidavits of documents. I allow 4 units in total.
[19] The use of the indefinite article, "an", in the introductory words for Item No. 8, permit a separate claim for preparation for each examination conducted. On the materials, the passage of time alone does not persuade me, in the circumstances, that a claim for fresh preparation is warranted each time the parties returned to an individual. It may be that the amendments to the pleadings and the unfolding of associated issues generated fresh causes of action necessitating such preparation. The Appellants had to confirm the case as advanced by each party. I allow 4 units for preparation for each of the seven individuals above.
[20] For Item No. 9, I do not think that Tariff B1(2) should be construed so narrowly as to yield a result inconsistent with the apparent effort indicated by the record. The parties were not entirely consistent on the issue of complexity. The materials did not elaborate on the nuances of difficulty associated with the discoveries. Consistent with the principle of partial indemnity and given that the Appellants incurred costs for their counsel to attend, I do not think the circumstances here are so exceptional as to warrant zero units. As for the durations claimed, the invoices disclose three different reporting firms for dates between July 20, 1992 to April 12, 1995 inclusive. They set out the number of hours in each day but not the starting and ending times. Then, for May 6, 1996, a fourth reporting firm sets out starting and ending times, does not factor out any time for lunch or adjournments and bills for the number of hours presented in the Bill of Costs. Between May 8 and 16, 1996 inclusive, that same firm follows the same format except that 1 hour is factored out each day (only 45 minutes factored out for May 16). That same firm also billed for the remaining dates presented in the Bill of Costs but without showing starting and ending times. This case appeared to turn on the authority of the Minister. I find the contrast between the findings in the two decisions striking. For Mr. Turris, I allow 2 units per hour. For the others, I allow 1 unit per hour. I used the hours disclosed on the invoices for durations.
Item No. 10: 6 units claimed for preparation for pre-trial conference, including brief
Item No. 11: 2 units claimed for 53 minutes attendance over four non-consecutive dates
| Item No. 13: 5 units for first day and 3 units for each of seven subsequent days claimed for preparation for trial |
[21] For Item No. 10, the Respondents argued for reduction to the minimum 3 units to reflect housekeeping conferences addressing scheduling. There was no preparation and brief required. Similarly, for Item No. 11, they argued for reduction of the mid-range 2 units claimed to the minimum 1 unit. For item No. 13, they argued for the minimum 2 units for each day to reflect only one witness for the Appellants in an eight-day trial and discoveries running to the eve of trial. For Item No. 10, the Appellants argued that the complexities of factual and legal issues justifies the maximum. For Item No. 11, the Appellants argued that senior counsel had to address difficult issues relating to bifurcation of the trial respecting liability and damages. For Item No. 13, the Appellants argued that the complexity and volume of issues represented by 14 volumes of Appeal Books justifies maximum units. As well, the Respondents' submissions confuse preparation for trial with the actual trial itself. It was the effective work by counsel in preparation for trial that confirmed the more important issues were primarily of a legal nature and did not require numerous witnesses.
Assessment
[22] The parties to this litigation appeared to struggle in crystallizing what was really at issue. I allow 5 units for Item No. 10. The conferences appear to have been straightforward. I allow 1 unit in total for Item No. 11. The results at trial and on appeal were striking by contrast. I do not necessarily draw an adverse inference concerning a series of discoveries culminating on the eve of trial. That could be indicative of the difficulty of the litigation. For Item No. 13, I allow the maximum 5 units for preparation for the first day, 3 units per day for two days, and 2 units per day for five days.
| Item No. 14: 3 units claimed per hour for attendance at trial of 52 hours over eight days |
| Item No. 15: 7 units claimed for preparation and filing of written argument |
[23] The Respondents argued that, since the only evidence of hours is what the Bill of Costs sets out, the threshold for proof in Tariff B1(2) has not been met and therefore the Appellants cannot claim anything for attendance at trial. There was nothing unusual to warrant the maximum claimed. The trial Judge did not request written argument. Here, the written argument is only a recitation of facts and a straightforward review of administrative law principles. The Appellants should not receive any units for the two documents comprising their written argument. The Appellants argued that their use of senior counsel, assisted from time to time by second counsel for which a fee is not claimed, and the use of two counsel by the Respondents, assisted by an articled student, indicates the complexity and justifies the maximum claimed. The Respondents' denial of complexity is inconsistent with their submissions elsewhere. The trial transcript disclosed the trial Judge's commendation to counsel for a good job in a difficult hearing. The hours detailed reflect the actual length of the trial and meet the threshold for proof. Both sides filed written argument, totalling 41 pages and 53 pages for the Respondents and Appellants respectively, at the request of the trial Judge as disclosed in the minutes of the pre-trial conference held May 3, 1996.
Assessment
[24] The threshold for proof in Tariff B1(2) does not require a result, such as no hours allowable, obviously inconsistent with the Court's own record. Here, the evidence confirms that the Appellants searched those records to confirm the number of hours claimed for the various hearings. For Item No. 14, the available range of 2 - 3 units requires a broad distinction between an upper and lower assignment for the service rendered. The Appellants had difficulties as the case unfolded before the trial Judge.
I allow the maximum 3 units. For Item No. 15, I allow 5 units for a careful job by counsel.
| Item No. 6: 3 units per hour claimed for 14 hours appearance over three days of a stay of proceedings application |
[25] The Respondents argued that they are not liable for costs further to an Order dismissing an application by the Intervenor, Pacific Coast Fishing Vessel Owners' Guild, to stay the trial Judgment until disposition of the appeal with costs against the Intervenor. The Appellants argued that it is irrelevant that the Respondents did not bring this application. The Intervenor brought the application as a function of the Respondents achieving an erroneous result at trial ultimately overturned on appeal with a finding that the whole action was misconceived. The Appellants should not be penalized for the considerable work and expense associated with this application and justifying the maximum.
Assessment
[26] The Order required the Intervenor, and not the Respondents, to bear the costs. I allow nothing.
| Item No. 19: 7 units claimed for Memorandum of Fact and Law |
| Item No. 20: 1 unit claimed for Requisition for hearing |
| Item No. 22: 3 units per hour claimed for attendance of 9 hours on appeal |
[27] The Respondents argued for the bare minimum given that the Appellants succeeded on a ground of appeal not raised at trial. The Court in Briere v. Canada [Q.L. 1986 F.C.J. No. 558] (F.C.T.D.) held that no costs should be awarded for judgment not based on any arguments raised by the parties. For Item No. 19, allow something on the lower end of the range given the absence of complexity or detail justifying the maximum. Item No. 14 does not address a joint application for hearing (for convenience here, I note misnumbering in the bill of Costs: Items No. 6, 8, 20 and 22 erroneously presented as Items No. 12, 4, 14 and 21 respectively). For Item No. 22, as above, the Appellants do not meet the threshold in Tariff B1(2) for proof. The Appellants argued that the complexity and volume of issues, including the need to detail numerous errors by the trial Judge, justifies the maximum for the Memorandum of Fact and Law. The Appellants argued that the Federal Court of Appeal clearly confirmed that the inappropriate conduct of both the Respondents and the trial Judge required the Appellants to unnecessarily appeal a case which could easily have been addressed by judicial review before the trial Judge. The Briere decision, supra, is irrelevant because the Court did not award costs there whereas the Federal Court of Appeal awarded costs here. The skill and experience of a senior litigator appearing on appeal, at which the Respondents were represented by two counsel, was necessary relative to the complexity of the issues and the nature of the Trial Division's decision. As above, the Appellants argued that their evidence of hours meets the threshold for proof.
Assessment
[28] I allow 6 units and 1 unit for items numbered 19 and 20 respectively. I am reluctant to apply the Briere decision, supra, to the amount of costs given that the Court has already decided on the scale of costs. With all due respect to senior and different counsel appearing on appeal, I think that the work preceding that hearing established a record by which the Federal Court of Appeal had little apparent difficulty in setting aside the Judgment at trial. For Item No. 22, I allow 3 units per hour for 2 hours and 2 units per hour for the remaining 7 hours.
Disbursements
[29] The Respondents relied on their submissions above concerning the Appellants' lengthy, repetitive and late examinations for discovery to argue that the latter's claim for court reporters and transcripts should be reduced by 50 percent. The Respondents argued that certain invoices for transcript associated with opening statements, evidence of certain witnesses (some expedited), argument and closing comments by the trial Judge were clearly not essential for the trial or appeal and should be denied. The other invoices for transcript were not necessary for the Trial Division. If necessary, they should appear in the Appeal Division portion of the Bill of Costs. In Leithiser v. Pengo Hydra Pull of Canada Ltd. [Q.L. 1973 F.C.J. No. 1106] (F.C.T.D.), the Court held that daily transcript was a luxury not indemnifiable by the opposing party. The Respondents noted that the Appellants had previously withdrawn their claim of $140.71 for courier fees. In reply, the Appellants relied on the evidence filed.
Disbursements
[30] I agree with the Appellants that discoveries benefit litigants and the Court by isolating and focusing issues. I allow their costs. Rule 343, addressing transcripts to be included in the appeal book, sets out more general parameters than the apparently more restrictive ones in old rule 1206(3)(a). However, I still remove the $863.28 for the transcript of the opening at trial by counsel for the Respondents. The Appellants may have viewed it as the template for the misdirection alleged but, in the circumstances, the verbal testimony and the Reasons would have been sufficient. As well, I remove $212.50 + GST for the transcript of argument by counsel for the Appellants and of the trial Judge's closing comments. The materials were not clear whether the invoice for $374.80 for excerpts of transcript of certain witnesses duplicated volumes approved elsewhere. I allow it.
[31] The Bill of Costs of the Appellants, presented at $91,067.45, is allowed at
$60,336.09.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Dated at Vancouver, B.C., this 23rd day of March, 1999.
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NAMES OF COUNSEL AND SOLICITORS OF RECORD |
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STYLE OF CAUSE: CARPENTER FISHING CORPORATION, |
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DON JOHANNES, KAARINA ETHERIDGE, |
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HER MAJESTY THE QUEEN IN RIGHT |
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OF CANADA and BERNARD VALCOURT, |
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MINISTER OF FISHERIES AND OCEANS |
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ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE |
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ASSESSMENT OF COSTS - REASONS BY: CHARLES E. STINSON |
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DATE OF REASONS: March 23, 1999 |
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Campney & Murphy for Plaintiffs (Respondents) |
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Mr. Morris Rosenberg for Defendants (Appellants) |
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