Date: 20080220
Docket: A-235-04
Citation: 2008 FCA 67
BETWEEN:
SHERIDAN GARDNER
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
ASSESSMENT OF COSTS – REASONS
Charles
E. Stinson
Assessment
Officer
[1]
The
Appellant brought an application (which was dismissed) in the Federal Court for
judicial review of a decision of the Canadian Human Rights Commission (the
Commission) dismissing her complaint against the Department of Foreign Affairs
and International Trade concerning her allegations of discrimination relative
to rental housing provided during her assignment at the Canadian Embassy in Tokyo,
Japan, from 1992 to 1995. This appeal of the Federal Court decision was
dismissed with costs. I issued a timetable for written disposition of the
assessment of the bill of costs of the Respondent, the Attorney General of
Canada (the Respondent).
I. The Respondent's Position
[2]
The
Respondent argued that there was nothing in the conduct of this litigation that
would justify a reduction of the maximum amounts claimed for counsel fee items
19 (memorandum of fact and law), 13(a) (preparation for hearing), 22(a)
(appearance at hearing) and 25 (services after judgment). The necessity for an
assessment of costs warrants Rule 408(3) discretion for an allowance of 3 units
($120.00 per unit) (available range = 2 to 6 units) for item 26.
II. The Appellant's Position
[3]
The
Appellant argued further to Rules 409 and 400(3)(a) (result) and (c)
(importance and complexity and Shepherd v. Canada (Solicitor
General)
(1990), 36 F.T. R. 222 (F.C.T.D.) that the costs allowed should be minimal
because her litigation, although unsuccessful, resulted in reductions of the
bias in the formula used to set accommodation rental rates for public servants.
It would be unjust to penalize the Appellant with costs while some
thousands of employees posted abroad after her benefited without having to
pay anything. The Appellant argued further to Rule 400(3)(h) (public
interest) and Singh v. Canada (A.G.), [1999] 4 F.C. 583 (F.C.T.D.) that
assessed costs should be minimal because of the extent of the benefits for
others resulting from this litigation. Any costs against the Appellant are
punitive and it would be reasonable to assess only an amount generated by the
ratio of herself to the number of government employees, posted abroad since
2001, who have benefited from this litigation's role in amending the rental
accommodation formula.
[4]
The
Appellant argued further to Rule 400(3)(i) (conduct) and Gee v. Canada v. (Minister
of National Revenue – M.N.R.), [2002] F.C.J. No. 12 (F.C.A.) that the
lack of clarity, which elicited negative comments by both the Federal Court and
the Federal Court of Appeal, in the Commission's decision led to unnecessary
lengthening of this proceeding. The Appellant should not be penalized for that
with costs. The Respondent's request for item 26 costs is unreasonable for the
reasons above. The Appellant requested lump sum costs of $50.00 for her
disbursements related to this assessment of costs.
[5]
The
Appellant argued further to Rule 400(3)(b) (amount claimed) and (g) (amount of
work) that there is no evidence to justify the claim for item 19. The work to
produce the Memorandum of Fact and Law would have been done during the Federal
Court proceeding as it largely mirrors the factum used there.
III. Assessment
[6]
Paragraph
1 of the Court's decision noted that the Federal Court had "reluctantly
dismissed" the application for judicial review. Counsel for the Respondent
at the Federal Court hearing indicated that his client would not seek costs.
The Commission did not seek costs. The Federal Court directed that there be no
order as to costs. The Appellant's notice of appeal sought costs below and
costs of the appeal in any event of the cause. One of the asserted grounds of
appeal was that the conduct of the Commission in failing to disclose certain
materials resulted in costs thrown away. The Appellant's Memorandum of Fact and
Law asserted this position on costs. The Court essentially found (paragraphs 12
to 19 inclusive) that the conduct of the Commission could not be criticized
because the subject materials were irrelevant and had never been put to it.
[7]
At
paragraph 23, the Court described the Commission's reasons as "laconic and
… more in the nature of a conclusion than reasons." The Court outlined
(paras. 29 to 31 inclusive) the process leading to the Commission's decision
and found that it afforded sufficient means for the Appellant to understand the
basis for the Commission's decision. Therefore, I find that the Appellant's
case law, which addressed the Court's discretion under Rule 400(1) concerning
entitlement to costs but not the manner in which they are to be assessed, of
little value. That is, the Court asserted no reasons to restrict access by the
Respondent, whose role is distinct from that of the Commission, to the ordinary
indemnity for costs in the event. I find that there was nothing in the conduct
of the Respondent to warrant reduction of costs. I have no jurisdiction in
these circumstances to partition costs relative to non-litigants.
[8]
In
Bow Valley
Naturalists Society v. Canada (Minister of Canadian
Heritage),
[2002] F.C.J. No. 1795 (A.O.), I considered the relevance of public interest
for assessments of costs and concluded that the application of Rules 409 and
400(3) factors against the interest of successful litigants would require
carefully considered discretion. That a judgment for costs does not accord the
unsuccessful litigant special consideration relative to costs as a function of
public interest does not preclude me from applying Rules 409 and 400(3)(h) to
minimize assessed costs. I will not do so here. The Court's decision (para. 3)
noted that the rental formula was not based on the actual accommodation
assigned and that said fact was key to the Appellant's assertion of
discrimination. The Appellant's submissions before me referenced paragraph 12
of the Court's decision in arguing that her litigation was beneficial to
thousands of public servants. With respect, I do not think that the record
necessarily supports that conclusion. Paragraph 12 refers to the letter dated
March 11, 2002, referring to the Appellant's complaint and forwarding to the
Commission a document outlining a new shelter costs formula. This covering
letter specifically asserts that "the basic policy of basing rents on
salary and family size, rather than on the specific accommodation occupied, has
not been changed." The document itself refers to an established ongoing
review of Foreign Service directives. I reject the Appellant's position,
including her request for Rule 408(3) costs.
[9]
I
concluded at para. 7 in Starlight v. Canada, [2001] F.C.J. No. 1376
(A.O.) that the same point in the ranges throughout the Tariff need not be used
as each item for the services of counsel is discrete and must be
considered in its own circumstances. As well, broad distinctions may be
required between an upper versus lower allowance from available ranges. Certain
interlocutory steps were required to perfect the Commission's status as
Intervener. There is nothing in the record to suggest that the Appellant's
status as a self-represented litigant generated unnecessary work in that area
or any other area of this litigation. I find that the issues in this appeal
were straightforward but required some effort of counsel. I allow item 19 at 5
units (available range = 4 to 7 units). I allow item 22(a) at the minimum
2 units per hour and item 25 as presented at 1 unit.
[10]
In
the context of what I perceive as general opposition to the bill of costs,
I disallow item 13(a) as this item falls under the subheading 'E. Trial or
Hearing'. There is no item with a comparable definition, i.e. preparation for
hearing of the appeal, under the subheading 'F. Appeals to the Federal Court of
Appeal'. Paragraph 53 (the dissenting opinion) of Consorzio del Prosciutto
di Parma v. Maple Leaf Meats Inc., 22 C.P.R. (4th) 177 (F.C.A.)
characterized this as an oversight in Tariff B and allowed a fee under item 27.
I have held that item 27 can only be used for services not already addressed in
items 1 to 26. I presume that the assertion in paragraph 53, i.e. that item 19
for the Memorandum of Fact and Law is a service comparable to preparation for
the hearing of the appeal, does not mean that these services are indeed the
same. In the circumstances, I allow the minimum unit under item 27 for
preparation for the appeal hearing.
[11]
I
allow the minimum 2 units under item 26 and the disbursements as claimed at
$81.67. The Respondent's bill of costs, presented at $2,840.47, is assessed
and allowed at $1,960.87.
"Charles
E. Stinson"
Email this Content