Date:
20040614
Docket:
A‑443‑03
Citation:
2004 FCA 231
CORAM: DESJARDINS J.A.
LÉTOURNEAU
J.A.
PELLETIER J.A.
BETWEEN:
DANIEL
MARTIN BELLEMARE
Appellant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
Hearing
held at Ottawa, Ontario, on June 8, 2004.
Judgment
rendered at Ottawa, Ontario, on June 14, 2004.
REASONS FOR JUDGMENT: DESJARDINS
J.A.
CONCURRED IN BY: LÉTOURNEAU
J.A.
PELLETIER J.A.
Date:
20040614
Docket:
A‑443‑03
Citation:
2004 FCA 231
CORAM: DESJARDINS J.A.
LÉTOURNEAU
J.A.
PELLETIER J.A.
BETWEEN:
DANIEL
MARTIN BELLEMARE
Appellant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT
DESJARDINS J.A.
[1] The
Court has before it an appeal from a judgment by a Federal Court judge (the trial
judge) acting pursuant to Rule 414. The trial judge dismissed the
application for review filed by the appellant against two orders and
certificates of assessment of costs made by the Assessment Officer
Michelle Lamy on May 16, 2003. In Daniel Martin Bellemare and
The Attorney General of Canada, T‑1073‑99, the costs assessed
and allowed amounted to $2,442.48. In The Attorney General of Canada and
Daniel Martin Bellemare and the Information Commissioner of Canada, A‑598‑99,
they were $2,217.12.
[2] The appellant
alleged that the assessment officer did not take into account sections 2,
4, 49 and 53 of the Access to Information Act, R.S.C. 1985,
c. A‑1 (the Act), nor the quasi‑constitutional nature of that
Act. He further argued that she erred in assessing and allowing the costs in
items 2, 5, 17, 18, 19, 20, 21(a), 25 and 26 of Tariff B of
the Federal Court Rules, 1998 (SOR/98‑106), and that the number of
units assessed and allowed in items 2, 5, 6, 21(a) and 22(a)
of the said Tariff is unreasonable and excessive. By way of example, the
appellant added that the assessment officer erred in finding to be reasonable
the expenses and travel costs incurred by the Attorney General of Canada, who
felt it preferable to be represented at the hearing by an attorney from the
Québec regional office in Ottawa rather than by an attorney from the Montréal
office. The appellant argued that the trial judge also erred in refusing to
intervene.
[3] The
applicable standard of review is not in dispute. In Wilson v. Canada
(2000), 196 F.T.R. 99, at 102, Dawson J. stated it in the
following way:
The Court’s jurisdiction to intervene in the decision of an assessment
officer does not allow the Court to substitute its own view on the facts for
that of the assessment officer. As noted by Joyal J. in Harbour
Brick Co. v. Canada (1987), 17 F.T.R. 255 (F.C.T.D.), intervention is
limited to cases where an error in principle has occurred, or to where the
amount assessed can be shown to be so unreasonable that an error in principle
must have been the cause.
[Emphasis added.]
[4] The
assessment officer was acting pursuant to this Court’s decision in case A‑598‑99,
where the formal judgment read as follows:
The appeal is allowed, the decision of the motions Judge is set aside
and the application for judicial review is struck in its entirety with costs
in favour of the appellant before both the Trial Division and the Appeal
Division. The Information Commissioner shall bear his own costs as well as
the disbursements of the respondent resulting from his intervention.
[Emphasis added.]
[5] There
was no appeal from that judgment.
[6] It is
worth setting out the Rules of this Court which apply in the case at bar:
|
PART 11
COSTS
AWARDING OF COSTS BETWEEN PARTIES
Discretionary powers of Court
400. (1) The Court shall have full
discretionary power over the amount and allocation of costs and the
determination of by whom they are to be paid.
...
|
PARTIE 11
DÉPENS
ADJUDICATION DES DÉPENS ENTRE PARTIES
Pouvoir discrétionnaire de la Cour
400. (1) La Cour a le pouvoir
discrétionnaire de déterminer le montant des dépens, de les répartir et de
désigner les personnes qui doivent les payer.
...
|
|
400. (3) In exercising its discretion
under subsection (1), the Court may consider
...
|
400. (3) Dans
l’exercice de son pouvoir discrétionnaire en application du
paragraphe (1), la Cour peut tenir compte de l’un ou l’autre des
facteurs suivants :
...
|
|
(h) whether the public interest in
having the proceeding litigated justifies a particular award of costs;
...
|
h) le fait
que l’intérêt public dans la résolution judiciaire de l’instance justifie une
adjudication particulière des dépens;
...
|
|
ASSESSMENT OF COSTS
Assessment by assessment officer
405. Costs shall be assessed by an
assessment officer.
...
|
TAXATION DES DÉPENS
Taxation par l’officier taxateur
405. Les dépens sont taxés par l’officier
taxateur.
...
|
|
Assessment according to Tariff B
407. Unless the Court orders otherwise,
party‑and‑party costs shall be assessed in accordance with column III
of the table to Tariff B.
...
|
Tarif B
407. Sauf ordonnance contraire de la
Cour, les dépens partie‑partie sont taxés en conformité avec la
colonne III du tableau du tarif B.
...
|
|
Factors in assessing costs
409. In assessing costs, an assessment
officer may consider the factors referred to in subsection 400(3).
...
|
Facteurs à prendre en compte
409. L’officier taxateur peut tenir
compte des facteurs visés au paragraphe 400(3) lors de la taxation des
dépens.
...
|
[7] Acting
pursuant to Rule 405, the assessment officer had no choice but to apply
column III of the Tariff B table, as stipulated in Rule 407. In
assessing and allowing the costs within the limits set in Rule 407 and
pursuant to the judgment rendered in case A‑598‑99 she could, under
Rule 409, consider in allocating the units allowed the factors referred to
in Rule 400(3), including in particular that in paragraph (h)
of that Rule. However, she could not diminish the amounts set out in the Tariff
nor reduce them to zero, as the appellant wished.
[8] As
regards the travel expenses and costs occasioned by the Attorney General of
Canada’s preference to be represented by an attorney from the Ottawa region,
rather than from Montréal, the high level of the standard of review does not allow
the Court to conclude that the assessment officer made an error of principle.
At most, the question was one of weighing the facts.
[9] The
appeal should be dismissed.
[10] The
Attorney General of Canada asked the Court to set the costs of this appeal at
the sum of approximately $1,500.
[11] The
appellant argued that under this Court’s decision in Information
Commissioner of Canada v. Minister of National Defence (1999), 240 N.R.
245, at paragraph 36, it does not have jurisdiction to award the costs in
an appeal.
[12] Paragraph
36 of that judgment referred to section 53 of the Act, which reads as follows:
|
53. (1)
Subject to subsection (2), the costs of and incidental to all
proceedings in the Court under this Act shall be in the discretion of the
Court and shall follow the event unless the Court orders otherwise.
|
53. (1) Sous
réserve du paragraphe (2), les frais et dépens sont laissés à
l’appréciation de la Cour et suivent, sauf ordonnance contraire de la Cour,
le sort du principal.
|
|
Idem
(2) Where the Court is of the opinion that an application for
review under section 41 or 42 has raised an important new principle in
relation to this Act, the Court shall order that costs be awarded to the
applicant even if the applicant has not been successful in the result.
|
Idem
(2) Dans les cas où elle estime que l’objet des recours visés aux
articles 41 et 42 a soulevé un principe important et nouveau quant à la
présente loi, la Cour accorde les frais et dépens à la personne qui a exercé
le recours devant elle, même si cette personne a été déboutée de son recours.
|
[13] Section
3 of the Act also states:
|
INTERPRETATION
Definitions
3. In this Act,
...
"Court"
means the Federal Court . . .
|
DÉFINITIONS
Définitions
3. Les définitions qui suivent s’appliquent
à la présente loi.
...
« Cour »
La Cour fédérale.
|
[14] In the
case cited above this Court held, as prescribed by subsection 53(2) of the
Act, that only the Federal Court, as the “Court” defined in section 3 of
the Act as amended, awards “costs . . . to the applicant even if
the applicant has not been successful in the result” when the Federal Court “is
of the opinion that an application for review under section 41 or 42 has
raised an important new principle in relation to this Act”. The Federal Court
of Appeal cannot award this type of costs.
[15] In the
case at bar, the Court is being asked to rule on costs which the successful
party may claim following an appeal decided in its favour, not costs which
might have been awarded to the appellant at trial.
[16] The
costs at issue here are awarded under Rule 400. The situation is therefore
completely different from that which was involved in Information
Commissioner of Canada v. Minister of National Defence, supra.
[17] I would
set the costs on appeal payable to the Attorney General of Canada by the
appellant at $500.
“Alice Desjardins”
|
|
J.A.
|
“I concur
Gilles Létourneau J.A.”
“I concur
J.D. Denis Pelletier J.A.”
Certified true
translation
Suzanne M.
Gauthier, C Tr, LLL
FEDERAL COURT OF APPEAL
SOLICITORS
OF RECORD
DOCKET: A‑443‑03
Appeal from order by Blanchard J. dated
August 7 in case No. T‑1073‑99.
STYLE OF CAUSE: DANIEL
MARTIN BELLEMARE
and THE ATTORNEY
GENERAL OF CANADA
and CANADA
INFORMATION COMMISSIONER
PLACE OF HEARING: OTTAWA,
ONTARIO
DATE OF HEARING: JUNE
8, 2004
REASONS FOR JUDGMENT: DESJARDINS
J.A.
CONCURRED IN BY: LÉTOURNEAU
J.A.
PELLETIER J.A.
DATE OF REASONS: JUNE
14, 2004
APPEARANCES:
Daniel Martin Bellemare The
appellant for himself
Francis Archambault For
the respondent
SOLICITORS OF RECORD:
Montréal, Quebec The
appellant for himself
Morris Rosenberg For
the respondent
Deputy Attorney General of Canada
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