Date: 20060523
Docket: A-505-03
Citation: 2006 FCA 192
BETWEEN:
DALE DUTCHAK
Applicant
and
UNITED TRANSPORTATION UNION
Respondent
and
CANADIAN PACIFIC RAILWAY COMPANY
Respondent
ASSESSMENT OF COSTS - REASONS
CHARLES E. STINSON
Assessment Officer
[1] The Applicant sought judicial review of a decision of the Canadian Industrial Relations Board dismissing his complaint that the Respondent, United Transportation Union (hereafter the Union), had violated the Canada Labour Code s. 37, i.e. by failing to fairly represent his interests concerning access to certain calls by the Respondent, Canadian Pacific Railway Company (hereafter CP), for work by union members. The Court dismissed his application for judicial review with costs to the Union and to CP. I issued a timetable for written disposition of their respective bills of costs.
[2] The Union noted that the actual counsel fees billed as between solicitor and own client exceeded $20,000.00 ($7,140.00 only claimed under the Tariff) for more than 68 hours of work, in addition to the $2,821.97 for disbursements. The Union argued that the Applicant's conduct complicated this proceeding, i.e. numerous filings and motions, most of which were unnecessary and unsuccessful, but all of which required attention to determine the appropriate response. The claimed amount of costs ($10,659.31) is only a fraction of the actual costs incurred by the Union. CP advanced the same argument concerning conduct by the Applicant, with the added observation that many of his filings were beyond the bounds of the Rules, resulting in extra and unnecessary costs.
[3] The Applicant, who represented himself throughout, argued for disallowance or reduction of CP's bill of costs further to Rule 400(3)(c); (d); (h); (i); (j); (k)(i) and (ii) and (n) factors, i.e. importance and complexity; apportionment of liability; public interest; conduct unnecessarily lengthening the proceeding; failure to admit; improper or negligent steps and exaggerated claims respectively. Unfortunately, the Applicant's supporting rationale for this argument took the form of unsubstantiated and nasty assertions such as falsification of materials, fabrication of testimony, political influence, breach or abuse of trust, absence of integrity and abuse of power. The Applicant argued that I should exercise Rule 400(6) to stay costs, or award costs to him, pending his referral of this matter to his provincial member of parliament and the RCMP for investigation.
[4] The Applicant's submissions for the Union's bill of costs essentially requested an affidavit justifying costs so that he could refer the matter to the federal Parliament and the RCMP relative to fabricated evidence. He asserted a refusal to pay any assessed costs as he is pursuing criminal proceedings against the Union, CP and judges of the Federal Court, by way of a ministerial review and the RCMP, for fabrication of evidence, conspiracy to disobey a federal statute, false pretences, political interference, bias and breach of trust. As well, he advanced allegations of theft.
Assessment
[5] The submissions of the Union and CP concerning the mode of conduct by the Applicant resonate with me because of the objectionable and offensive nature of his materials. It is difficult to give credence to materials from a litigant who styles himself as "[S]acrificial lamb and Federal Court scapegoat" (his letter dated March 2, 2006) and who begins a document (dated March 8, 2006) entitled "Applicants [sic] Response To The Theft of Costs ..." with the absurd and offensive phrase, "[W]ith no disrespect, it is first evident and clear within these proceedings that some Justices on the Bench are bought and paid for ..." The Applicant cannot be criticized for exercising a right for relief against his own union for perceived wrong doing. Viewed in a vacuum, the issue for which he sought adjudication was serious and not frivolous. However, that did not relieve the Applicant of responsibility to exercise that right for relief in an ordered and cost-effective manner. My reading of the Record impels me to agree with the Union and CP: his mode of conduct created unnecessary work and costs for his adversaries. The Applicant, together with his brother and sister members, bears that added and unnecessary burden via their dues because the partial indemnity limits of the Tariff simply will not compensate therefore in these circumstances.
[6] Quite simply, the Applicant's materials were irrelevant. His reliance on Rule 400(6), for relief clearly beyond my jurisdiction, indicates a lack of understanding of the process of assessment of costs, i.e. to translate an award of costs into a dollar amount. Effectively, the absence of any relevant representations by the Applicant, which could assist me in identifying issues and making a decision, leaves both bills of costs unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of the judgment and the Tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. Certain items warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to both bills of costs.
[7] Both bills of costs claim an item 2 counsel fee twice: once for the notice of appearance and once for the Respondent's Record. I doubt that the wording of item 2, under the subheading "A. Originating Documents and Other Pleadings" and containing the term "all ... materials", can be stretched to permit two claims in these circumstances. I allow only a single item 2 at the maximum 7 units in each bill of costs (CP claimed 6 units, but I think the circumstances here warrant the maximum with regard to Rules 409 and 400(3)(i), i.e. conduct tending to unnecessarily lengthen a proceeding).
[8] Each bill of costs claims item 5 (preparation of motion) for several orders. I can only find five orders on the Court file. One, dated August 27, 2004, provided for "no costs" meaning that item 5 cannot be allowed. The other four, dated April 11, June 24, September 20 and October 21, 2005 respectively, were silent on costs. In Aird v. CountryParkVillage Properties (Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at paragraph [10], I concluded that "a judgment after trial does not generally perfect entitlements to costs for which the relevant interlocutory orders were silent on costs or specifically denied costs". I must disallow the various claims for item 5.
[9] I allow the item 13(a) and 14(a) claims (preparation for and attendance at hearing respectively) at the maximum 5 and 3 units (bringing CP's claim up from 2 to 3 units). The Federal Courts Act, sections 3 and 5(1) defining the Court, and Rule 2 of the Federal Courts Rules defining an assessment officer, mean that the terms "Court" and "assessment officer" refer to separate and distinct entities. The Court did not exercise visible discretion here for travel fees of counsel under item 24. I do not have the jurisdiction, in the absence of such an exercise of jurisdiction, to allow anything. That restriction does not apply to the associated travel disbursements, for which I retain jurisdiction per Rule 405. That is, counsel fees and disbursements are distinct and discrete items of costs addressed by different portions of the Tariff, i.e. items 1 to 28 in the TABLE in Tariff B address counsel fees and Tariff BI addresses disbursements. Accordingly, item 24 addresses counsel fees, but not disbursements. The discretion reserved to the Court to authorize assessment officers to address item 24, or even item 14(b) for second counsel, is exercised distinct from the discretion vested in me by Rule 405 and Tariff BI. There is no implied caveat impeding me from allowance of travel disbursements for counsel in the absence of an item 24 direction from the Court for fees for the time of counsel to travel to and from the hearing venue. The implications of indemnity for the professional time of counsel in transit are surely different than for charges (airlines, hotels and meals) for putting and maintaining one's counsel at the hearing venue. I therefore disallow the item 24 claims in each bill of costs, but I allow the associated travel disbursements as presented ($731.77 and $1,592.59 for CP and the Union respectively).
[10] I allow item 25 (services after judgment) as presented at 1 unit in each bill of costs. I am not inclined to bump up the item 26 claims from the minimum 2 units given the result on assessment and the absence of rational materials from the Applicant. I disallow the item 28 claim by the Union: see Air Canada v. Canada(Minister of Transport), [2000] F.C.J. No. 101 (A.O.). However, I will add to each bill of costs an item 27 allowance (such other services as may be allowed by the assessment officer) of the maximum of 3 units because I think that the mode of conduct by the Applicant put opposing counsel to tasks not otherwise addressed by items 1-26.
[11] Given certain disallowances above, I reduce the claims of $708.74 and $331.89 for photocopies and couriers in the Union's bill of costs to $550.00 and $265.00 respectively. I allow the claims of $89.43, $89.81 and $9.51 for long distance tolls, facsimiles and computer research respectively. I reduce the $24.56 claimed for couriers in CP's bill to $19.00.
[12] The Union's bill of costs, presented at $10,659.31, is assessed and allowed at $5,474.48. The bill of costs of CP, presented at $5,507.13, is assessed and allowed at $3,447.17.
(Sgd.) "Charles E. Stinson"
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