Date: 20050404
Docket: A-244-03
Citation: 2005 FCA 112
BETWEEN:
VICTOR MARIE uncontested Chief and NORMAN STARR
uncontested newly elected BAND COUNCIL MEMBER and
JEANNIE MARIE-JEWELL, acting as Interim Band Manager
Appellants
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MELVIN WANDERINGSPIRIT, DELPHINE BEAULIEU,
TONI HERON, RAYMOND BEAVER and SONNY McDONALD
in their capacity as COUNCILLORS OF THE
SALT RIVER FIRST NATION 195, elected August 30, 2002
Respondents
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1] This appeal, addressing a judicial review which found that the election held by the Salt River Band 195, purportedly to terminate the terms of the Respondents as duly elected band councillors and replace them with certain other individuals, was void and of no effect, was dismissed with costs. The Respondents in this appeal were the Appellants in related court file A-286-03 (the Respondents being the Appellants in court file A-244-03 plus certain respondents in the Federal Court judicial review file T-2007-02) which challenged the jurisdiction of the motions judge in the Federal Court file concerning certain interim orders purporting to specify signing authorities for negotiable instruments involving band funds. The Court allowed the appeal in court file A-286-03 with costs. A copy of these Reasons is filed today in court file A-286-03 and applies there accordingly. For ease of reference, the successful litigants in court files A-244-03 and A-286-03 entitled to costs are referred to hereafter as the "successful parties". The unsuccessful litigants in those court files liable to pay costs are referred to hereafter as the "unsuccessful parties". After some preliminary correspondence concerning the logistics of securing appearance by the unsuccessful parties, who appear to be unrepresented at this stage, at an oral hearing, the successful parties agreed to issuance of a timetable for written disposition of the assessment of their bill of costs, presented as a single document addressing both appeal files.
[2] I find the reply materials of the unsuccessful parties to be either non-responsive or unfocused. I do not have the Court's Rule 400(1) jurisdiction to deny costs to the successful parties, a result requested of me by the reply materials of the unsuccessful parties but which is clearly precluded here both by the reality that the Court has already exercised its Rule 400(1) jurisdiction to award such costs, and by the jurisdictional boundaries dictated by the definitions of court and assessment officer in ss. 3 and 5(1) of the Federal Courts Act and Rule 2 of the Federal Courts Rules respectively.
[3] Effectively, the absence of any relevant representations by the unsuccessful parties which could assist me in identifying issues and making a decision leaves the bill of the successful parties 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, ie. 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. In the circumstances of this litigation, the claims in the bill of costs, although at the maximum values in the available ranges for counsel fee items, are generally arguable within the limits of the award of costs. However, certain things warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs.
[4] Specifically, the bill of costs claims in court file A-244-03 for counsel fee items 5 (preparation of motion) and 6(appearance) as a function of the order dated June 12, 2003, to expedite appeal. Said order was silent as to costs. The successful parties asserted that, as this order pre-dated the coming into force on July 2, 2003 of the Federal Courts Act, it is still open for the assessment officer at this stage to award costs in the cause. Quite simply, that assertion is untenable. The coming into force of the Federal Courts Act did not change the basic scheme of costs and associated principles within the Federal Court of Canada coming forward into July 2, 2003, and becoming immediately applicable on that date to matters in the Federal Court and in the Federal Court of Appeal as a function of transitional section 191 of the Courts Administration Service Act:
191. Rules that were made under section 46 of the Federal Court Act before the coming into force of section 44 of this Act are deemed to have been validly made and continue to have force as though they had been made under section 46 of the Federal Courts Act, as amended by section 44 of this Act.
Therefore, my conclusions in paragraph [6] of Balisky v. Canada (Minister of Natural Resources) [2004] F.C.J. No. 536 (A.O.) still apply: I have no jurisdiction to assess costs for these items 5 and 6 as a function of decisions silent on costs. For similar reasons, I do not exercise the authority or discretion of the Court as contemplated by counsel fee item 21(b) (appearance of second counsel) and therefore I disallow said items as well. There was a separate June 12, 2003 Order which did address costs, but as a lump sum award of $3,000.00 As said order is capable of being enforced for payment independent of my certificate of assessment, it is not necessary, as the successful parties have done, to include it in their bill of costs: I remove said $3,000.00 from the assessed total below. All other counsel fee items are allowed as presented.
[5] My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608 that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", is that discretion may be applied to sort a reasonable result for costs equitable for both sides. The disbursements claimed here would include charges associated with disallowed items 5 and 6 above, but not a large amount. I remove $450.00 from the disbursement total of $16,306.77. The bill of costs of the successful parties, presented at $28,897.24, is assessed and allowed at $22,616.34.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-244-03
STYLE OF CAUSE: VICTOR MARIE et al.
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MELVIN WANDERINGSPIRIT et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE
OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: April 4, 2005
SOLICITORS OF RECORD:
MacKenzie Fujisawa for Respondents
Vancouver, BC
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