Date: 20130108
Dockets: A-237-11
A-244-11
Citation: 2013 FCA 1
Present: Bruce
Preston, Assessment Officer
BETWEEN:
VLASTA STUBICAR
Appellant
and
DEPUTY PRIME MINISTER AND
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
ASSESSMENT OF COSTS -
REASONS
Bruce
Preston - Assessment Officer
[1]
These
Reasons will be filed in Court file A-237-11 and in Court file A-244-11.
Separate Certificates of Assessment will be issued for each file.
[2]
The
Federal Court of Appeal heard the appeal in A-237-11 together with file
A-244-11. By way of Judgments dated February 15, 2012, the Court dismissed both
appeals “with costs limited to one set for the hearing on appeal”.
[3]
On
August 15, 2012 the Respondents filed two Bills of Costs, one on each file.
Further to the Direction issued August 29, 2012, the parties have filed their
Written Representations as to Costs.
[4]
As
a preliminary issue, I find it necessary to determine the proper interpretation
of the awards of costs in the Judgments dated February 15, 2012. At paragraph 5
of their Written Representations, the Respondents submit:
…the two cases were heard
consecutively on February 15, 2012, and it is obvious that the Federal Court of
Appeal, in such circumstances, would limit the costs for the hearing of both cases to only
one set of costs. (emphasis is the Respondents’)
Then at paragraph 6, the Respondents contend that
they are entitled to all of their costs, incurred on both files, pursuant to
Tariff B, as submitted in their Bills of Costs. The Respondents conclude by
submitting that if the Court had intended to omit all items except Item 22(a)
it would have done so, therefore, costs should be allowed as per the order of
the Federal Court of Appeal.
[5]
In
response, at paragraph 9 of her Written Representations, the Appellant submits
that by not being set off from the rest of the sentence by commas or
parentheses, the words “limited to one set for the hearing on appeal” are
properly considered essential to the main idea of the sentence as a whole. In
support of this, at Tab 10 of the Appellant’s Written Representations, the
Appellant refers to Webster’s Third New International Dictionary of the
English Language at page 49a section 4.1.2.1 and 4.1.2.2. The Appellant
further contends that the words “limited to one set for the hearing on appeal”
are properly interpreted as being akin to the words “limited to $500”.
[6]
The
Appellant continues by setting out a comparison of the wording in the Court’s
Reasons for Judgment in this file with the wording in other decisions of the
Court. The following examples are referred to: “The two appeals will be
dismissed with costs limited to one set for the hearing on appeal”, Stubicar
v Canada 2012 FCA 52, at paragraph 6; “I would dismiss the appeal with
costs, but would limit the hearing costs to one set”, Gagliano v Canada
2011 FCA 217, at paragraph 50; “For the forgoing reasons, I would dismiss each
appeal with costs to the respondent, limited in relation to the hearing before
us to one set of costs, as the appeals were heard together”, Canadian
Association of Broadcasters v Canada 2008 FCA 157, at paragraph 100; “…we
have concluded that these appeals must be dismissed with costs (limited to one
set for the hearing)”, Wicks v Canada 2008 FCA 96, at paragraph 3 and “I
would therefore dismiss the appeals with costs provided, however, that only one
set of costs be awarded for the hearing”, Canadian Pacific Ltd v Matsqui
Indian Band [1999] FCJ 1057, at paragraph 32.
[7]
At
paragraph 15 of her Written Representations, the Appellant submits that the
Respondents’ interpretation of the award of costs, that costs are awarded
throughout but only one set of costs is awarded for the hearing, is the same as
that conveyed in the decisions in Canadian Association of Broadcasters (supra)
and Canadian Pacific (supra). The Appellant further submits that
the visible difference in the construction of those awards, when compared with
the award in these files, suggests that the award in the present files hold a different
meaning than that suggested by the Respondents. The Appellant concludes by
suggesting that, in light of the forgoing considerations, it is reasonable to
give effect to the construction which the Court has used in these cases, by
limiting the costs payable to “one set for the hearing on appeal”.
[8]
By
way of response, in their Rebuttal Written Representations, the Respondents
submit:
1.
At
paragraphs 3 to 26 of her written representations, through an unproductive
close semantic parsing of the Court’s reasons in several cases, the Appellant
submits unreasonable interpretation of the reasons rendered by the Federal
Court of Appeal in the instance.
2.
Common
sense should prevail, and the Applicant’s [sic] interpretation of the
Court’s reasons should be rejected. By limiting the costs to only one set for
the hearing (common hearing), the Federal Court of Appeal was simply ensuring
that the Respondent did not claim twice for its sole presence in Court on the
two cases that were heard consecutively.
3.
Rule
407 of the Federal Courts Rules provides that unless the Court orders
otherwise, party-and-party costs shall be assessed in accordance with Column
III of Tariff B.
4.
Respondent
reiterates that had the Court wished to exclude costs for all the other items
other than 22 a), it would have clearly stated so.
[9]
Before
proceeding further, I must determine whether the Respondents are entitled to
one set of costs for the combined hearing of the appeals only, or whether the
Respondents are entitled to their costs of the proceeding on each file, but for
the combined hearing of the appeals, they are only entitled to one set.
[10]
The
Respondents have submitted that they are entitled to their costs throughout and
that common sense would suggest that the Court of Appeal was simply ensuring
that the Respondents did not present two claims for one appearance in Court.
However, if the clear meaning of the Courts’ award of costs suggests otherwise,
the Respondents’ “common sense” argument must fail.
[11]
The
Respondents have suggested that the Appellant’s submissions on this point
amount to unproductive close semantic parsing of the Court’s Reasons. On the
contrary, I find that the crux of the decision concerning the breadth of the
costs award may be found in the grammatical construction of the award. When the
award of costs in this file is compared to the awards in the other decisions
submitted by the Appellant, the difference is found in the use of restrictive
and non-restrictive elements of a sentence.
[12]
As
submitted by the Appellant, the Webster’s Third New International Dictionary
of the English Language suggests that:
When inserted or appended words,
phrases or clauses are restrictive or essential to the main idea of a
statement, they are spoken without the pause or other significant intonation
that would indicate a matter of minor importance. In writing commas are likewise
unnecessary.
(Emphasis added)
On page 120 at section 7.14 in The Canadian Style
(Dundurn Press Limited in co-operation with Public Works and Government
Services Canada Translation Bureau, 1997) it states:
Most difficulties with the use of
the comma hinge on the distinction between restrictive and non-restrictive
sentence elements. A
restrictive word, phrase or clause adds to the words it modifies a
“restrictive” or defining element that is essential to the meaning of the
whole; it should therefore not be separated by a comma or other mark of
punctuation.
A non-restrictive element provides incidental or supplementary information
which does not affect the essential meaning; it should be set off by a comma or
commas. (Emphasis added)
From these excerpts, it is clear that the only
difference between a restrictive and a non-restrictive clause is a comma or
other mark of punctuation.
[13]
When
these grammatical elements are applied to an award of costs, the difference
between “with costs limited to one set for the hearing of the appeal” (a
restrictive phrase) and “with costs, limited to one set for the hearing of the
appeal” (a non-restrictive phrase) becomes clear. In the phrasing of the
Judgment in this file, the modifying words “limited to one set for the hearing
on appeal” add
to the word “costs” a restrictive or defining element that is essential to the
meaning of the whole. In other words, I find that the costs of this matter are
limited to one
set for the hearing on appeal. I will now proceed with the assessment of costs.
A-237-11
Assessable
Services
[14]
In
keeping with the above reasons, Items 18 and 19 are not allowed as they are not
fees related to the hearing on appeal. Concerning Item 22(a), at paragraph 38
of her Written Representations the Appellant submits:
The minutes of hearing in this
case are evidence at first sight that counsel for the Respondent’s only
intervention was five minutes before the end of hearing, when, in answer to the
question from the Bench, counsel confirmed that he was relying on his factum.
This is a relevant consideration in assessing the reasonableness of the maximum
3 units claimed.
[15]
At
paragraph 17 of their Rebuttal Written Representations the Respondents submit:
The Appellant objects to the
maximum 3 units claimed by the Respondents on the basis that Respondents’
intervention was limited to answer a question asked by the Court. As mentioned
in Simpson Strong-Tie Company Inc v Peak Innovations Inc, 2010 FCA 78,
at para. 6, “Although the Court did not call upon counsel for the Respondent,
he still had to prepare for and attend the full hearing without any expectation
of not having to speak”.
[16]
Rule
409 of the Federal Courts Rules states that, in assessing costs, an
assessment officer may consider the factors referred to in subsection 400(3).
Of the factors listed under Rule 400(3), I find (c), the importance and
complexity of the issues and (g), the amount of work, to be the most relevant
in the assessment of Item 22(a) on this matter. In submitting that the
Respondents only had to answer a question posed by the Court, it appears that
the Appellant’s submissions relate to subsection 400(3)(g), amount of work. In
keeping with the decision in Simpson Strong-Tie (supra), I find
that although he was only asked a question by the Court, counsel for the
Respondents had no forewarning that he would not be called upon to present
submissions and therefore had an obligation to attend and remain attentive to
the submissions of the Appellant. On the other hand, pursuant to subsection
400(3)(c), I am able to consider the complexity of the issues in assessing
costs. Having reviewed the decision of the Court and the materials filed by the
parties, I find that this was an appeal concerning a motion to strike an
affidavit, that the issues involved in this appeal were not complex and that
the Court’s Reasons consisted of slightly more than two pages. Considering
this, I find that a claim of 3 units under Item 22(a) is not reasonable and
allow Item 22(a) at 2 units per hour. As the Appellant has not disputed the
duration of the hearing, and the duration claimed being consistent with the
duration found on the Abstract of Hearing, Item 22(a) is allowed for a total
duration of 1.5 hours.
[17]
Having
regard to Item 26, in her Written Representations the Appellant contends that
the Respondents’ Affidavit and Written Representations are relevant
considerations in determining whether the Respondents expended sufficient
effort to warrant the maximum under Item 26. Finally, the Appellant submits
that under Rule 408(3), an assessment officer may assess and allow, or refuse
to allow, the costs of an assessment to either party.
[18]
By
way of rebuttal, counsel for the Respondents submits that the assessment “was
not the most complicated” and that 3 units should be, in the circumstances, a
minimum allowed.
[19]
The
Respondents have claimed 6 units under Item 26. As submitted by the Appellant,
Rule 408(3) of the Federal Courts Rules provides Assessment Officers
with jurisdiction to assess and allow, or refuse to allow, the costs of an
assessment to either party. Therefore, I find that I am able to allow Item 26
despite the limitation imposed by the Court’s Judgments. Considering the
submissions of counsel for the Respondents and the jurisdiction conferred by
Rule 408(3), Item 26 is allowed at 3 units.
Disbursements
[20]
The
Respondents have claimed disbursements for the photocopying of the
Supplementary Appeal Book, Respondents’ Memorandum of Fact and Law and the
Respondents’ Book of Authorities. They have also claimed disbursements for the
service of the Respondents’ Memorandum of Fact and Law and the Respondents’
Book of Authorities. Having found that the costs awarded are
limited to one
set for the hearing on appeal, I find that I am not able to allow any of the
disbursements claimed as they do not relate specifically to attendance at the
hearing on appeal.
A-244-11
[21]
In
keeping with my reasons above, Items 18 and 19 are not allowed.
[22]
Concerning
disbursements, the Respondents have claimed for the same disbursements as were
claimed in file A-237-11. In keeping with my reasons above, I am not able to
allow any of the disbursements claimed as they do not relate specifically to
attendance at the hearing on appeal.
[23]
Concerning
Item 26, and in keeping with my reasons above, I allow 3 units as the
Respondents argued costs on both files even though, ultimately, costs were only
allowed on file A-237-11.
[24]
Finally,
as the amounts for the hearing on appeals are already allowed at the low end of
Column III of the Table in Tariff B, I find that there is no requirement to
review the Appellant’s representations concerning a reduction of costs due to
public interest.
[25]
For
the above reasons, the Respondents’ Bill of Costs on file A-237-11 is assessed
and allowed at $780.00 and the Respondents’ Bill of Costs on file A-244-11 is
assessed and allowed at $390.00. Separate Certificates of Assessment will be
issued for each file.
“Bruce Preston”
Toronto, Ontario
January 8, 2013
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