Date:
20120508
Docket:
A-305-11
Citation:
2012 FCA 142
CORAM: BLAIS
C.J.
LÉTOURNEAU
J.A.
STRATAS
J.A.
BETWEEN:
SENATOR
PATRICK BRAZEAU
Appellant
and
ALISA RENÉE LOMBARD
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on May 8, 2012)
STRATAS J.A.
[1]
Senator
Brazeau appeals from a costs award made against him by the Federal Court (per
Justice Shore) on August 17, 2011.
[2]
The costs
award was made on a consent motion brought by Ms. Lombard for an extension of
time for her to conduct cross-examinations. Ms. Lombard is a lawyer
representing herself in these proceedings.
[3]
In support
of the motion, Ms. Lombard filed, among other things, a notice of motion and
written consents to the motion, executed by counsel for the other parties to
the motion, Senator Brazeau and the Canadian Human Rights Commission.
[4]
The notice
of motion contained a request for costs. The consents did not explicitly
mention the issue of costs. The consents only stated that the parties consented
to “the applicant’s motion for an extension of time of 56 days” for her to
conduct cross-examinations. The consents predated the notice of motion. On this
material, the Federal Court made the order, with costs to Ms. Lombard.
[5]
Before the
hearing in this Court, Senator Brazeau brought a motion to file an affidavit of
one of his counsel. That material suggests that the parties never consented to
the award of costs. The motion was granted. This affidavit was placed before us
as fresh evidence, subject to submissions as to its relevance and weight.
[6]
The
material before the Federal Court on the issue of whether the parties agreed to
the costs award is ambiguous. Therefore, we consider the affidavit to be
relevant. We are prepared to give it weight.
[7]
The
affidavit discloses that counsel for Senator Brazeau executed the consent and
delivered it to Ms. Lombard before seeing Ms. Lombard’s notice of motion. A few
days later, counsel for Senator Brazeau received Ms. Lombard’s motion record,
including the notice of motion and the request for costs contained in it, but did
not review it.
[8]
The
affidavit also appends an exchange of correspondence that took place after the
Federal Court made its order. Counsel for Senator Brazeau wrote Ms. Lombard
advising her that the parties did not agree to costs and so the order should be
corrected by removing the award of costs. In her responding letter, Ms. Lombard
admitted that the motion record she filed “[did] not represent that either your
client or the [Canadian Human Rights Commission] consented to costs.” Nowhere
else in her letter did Ms. Lombard state that Senator Brazeau consented to
costs. Yet, she did not agree to correct the order.
[9]
In our
view, upon seeing that an award of costs had been made in circumstances where
the material did not represent that Senator Brazeau and the Canadian Human
Rights Commission consented to costs, and upon being alerted to the existence
of a misunderstanding among the parties, Ms. Lombard should have corrected the
matter.
[10]
As well,
the notice of motion for this consent order should not have sought costs absent
a clear indication that costs were part of the consent.
[11]
All of these
events took place against the backdrop of Rule 410(2) which presumptively makes
the party applying for an order for an extension of time – here Ms. Lombard –
liable for costs. Also forming part of the backdrop is a practice among counsel
that no costs are sought on consent motions, absent highly unusual
circumstances.
[12]
Ms.
Lombard has filed no evidence explaining her conduct or taking issue with any
of the above facts.
[13]
In these
circumstances, we are of the view that there was no consent to costs.
Therefore, the costs award in the Federal Court’s order cannot stand.
[14]
Therefore,
we shall allow the appeal and set aside the award of costs in paragraph 3 of
the Federal Court’s order of August 17, 2011. Senator Brazeau shall have his
costs of the appeal.
"David
Stratas"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-305-11
APPEAL
FROM AN ORDER OF THE HONOURABLE MR. JUSTICE SHORE DATED AUGUST 17, 2011,
DOCKET NO. T-741-11
STYLE OF CAUSE: Seantor
Patrick Brazeau v. Alisa Renée Lombard
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 8, 2012
REASONS FOR JUDGMENT OF THE
COURT BY: Blais C.J., Létourneau, Stratas JJ.A.
DELIVERED FROM THE BENCH BY: Stratas J.A.
APPEARANCES:
|
Andrew Lister
|
FOR
THE APPELLANT
|
|
Alisa Renée Lombard
|
ON
HER OWN BEHALF
|
SOLICITORS
OF RECORD:
|
Lister Beaupré
Ottawa, Ontario
|
FOR THE APPELLANT
|
|
|
|
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