Docket: T-1853-15
Citation:
2017 FC 801
Ottawa, Ontario, September 1, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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PRIVATE (RET’D)
CORY D. WAGNER
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
In September 2013, the Canadian Armed Forces [CAF]
released Cory D. Wagner [the Applicant] for unsatisfactory conduct after an
administrative review. The Applicant submitted a grievance saying the CAF
should not release him, or in the alternative, the CAF should not release him
for the reason of unsatisfactory conduct. The final de novo review,
conducted by General Vance, Chief of the Defence Staff [CDS], dismissed the
grievance on September 25, 2015, and released the Applicant for unsatisfactory
conduct under item 2(a) of article 15.01 (Release of Officers and
Non-Commissioned Members) of the Queens Regulations and Orders for the Canadian
Forces [QR&O].
[2]
I was asked to judicially review General Vance’s
decision. Because the evidence before the final decision maker was properly
considered and reasonable, and because the de novo review cured prior
procedural unfairness with additional disclosure as well as opportunities to
respond, the application is refused for the reasons that follow.
II.
Background
[3]
The Applicant enrolled as an infantryman in the CAF
Reserves with the Canadian Scottish Regiment (Princess Mary’s) on June 1, 2011,
in Nanaimo, British Columbia. He completed his Basic Military Qualification on
September 6, 2011. On December 24, 2011, he broke into his place of work (a McDonald’s
restaurant) and stole approximately $16,000.00. After the criminal incident but
before he was charged, the Applicant transferred to the CAF Regular Forces on
March 31, 2012, and was posted to Wainwright, Alberta. He was expected to
report for duty in Wainwright on April 29, 2012.
[4]
Before the Applicant reported for duty in
Wainwright, the RCMP arrested him on April 4, 2012, and charged him with two
indictable offences under the Criminal Code in connection to the Christmas Eve
incident. These offences were: 1) break and enter contrary to Criminal Code
section 341(1)(a); and 2) theft over $5,000.00 contrary to Criminal Code section
334(a). The Applicant confessed and was released on bail with conditions
including these two: 1) he was only permitted to travel outside British
Columbia for training with the military; and 2) he could not possess firearms,
ammunition or replicas thereof, except as required by the CAF. Based on his
arrest, an administrative review of the Applicant’s situation was commenced on
April 17, 2012.
[5]
While travelling to Wainwright on April 28,
2012, the Applicant was detained at the Vancouver International Airport because
his luggage contained a replica .44 caliber pistol contrary to his bail conditions.
He was allowed to continue to Wainwright and report for duty, and was later
charged with breach of recognizance contrary to Criminal Code section 145(3).
[6]
The Applicant’s bail conditions required routine
reports to a bail supervisor. From July 9, 2012 to October 19, 2012, the
Applicant failed to report even though he had initially. This resulted in
another breach of recognizance contrary to Criminal Code section 145(3).
[7]
The Applicant pled guilty in December 2012 to: break
and enter - indictable offence (theft over $5000) contrary to Criminal Code
section 348(1)(b); and breach of recognizance (possession of a weapon)-summary
offence- contrary to Criminal Code section 145(3). On February 25, 2013, the
Applicant pled guilty to the third offense: breach of recognizance (failure to
report to bail supervisor) –summary offence-contrary to Criminal Code section
145(3).
[8]
Judge Gouge of the British Columbia Provincial
Court sentenced the Applicant for the three convictions on April 26, 2013. Judge
Gouge gave the Applicant a one year conditional sentence and two years’
probation with conditions. If he breached his conditions then he would serve
the balance in jail.
[9]
The CAF can release members for any of the reasons
set out under the release items in QR&O article 15.01. Before the Applicant
pled guilty to the charges, the Applicant’s Acting Commanding Officer on October
31, 2012, recommended his release under item 5(f) (Service Completed—Unsuitable
for Further Service) of article 15.01 QR&O. On May 15, 2013, the Applicant acknowledged
receipt of the synopsis dated May 10, 2013, of his administrative review which
recommended release under item 2(a) (Unsatisfactory Service—Unsatisfactory
Conduct) of article 15.01 QR&O. The Applicant retained counsel on June 10,
2013, who continues to represent him on this judicial review.
[10]
On August 15, 2013, the Director Military
Careers Administration [DMCA] determined that due to the Applicant’s serious
criminal convictions, his retention in the CAF was not possible. He directed the
Applicant’s release under item 2(a) no later than September 15, 2013.
[11]
The Applicant grieved the initial decision. This
grievance was submitted to the Military Grievances External Review Committee
[the Committee] on September 2, 2013. The CAF released the Applicant on
September 18, 2013.
[12]
On March 13, 2015, the Committee’s Findings and
Recommendations [F&R] were issued and subsequently given to the Applicant. The
Committee recommended partially upholding the grievance by changing the
Applicant’s release from item 2(a) “Unsatisfactory
Conduct” to 5(f) “Unsuitable for Further
Service”. The Committee recommended this change because at the time he
committed his offences in the oral sentencing transcript it mentioned the
Applicant having Fetal Alcohol Spectrum Disorder [FASD]. On April 8, 2015, the
Applicant submitted a reply saying he declined to comment on the F&R. The Committee’s
recommendation was forwarded to General Vance, CDS and final decision maker.
[13]
General Vance conducted a de novo review
and issued his decision on September 25, 2015. He found that the Applicant had
suffered a breach of procedural fairness because he was not provided with all the
relevant documents relating to his release before the previous decision.
Specifically, the Applicant had not been provided the medical opinion of Major
Patterson, Acting Head of Medical Policy and Standards, nor had the Applicant
been shown his training records from Wainwright.
[14]
General Vance then found this breach of
procedural fairness had been remedied. First, he noted the Applicant had been
provided with the missing documents as part of the Committee’s disclosure.
Second, the Applicant was given two opportunities to respond to the additional
documents and on June 11, 2015, the Applicant did provide written comments in
response. Since General Vance conducted a de novo review, he considered
any breach of procedural fairness cured.
[15]
General Vance concurred with much of the Committee’s
recommendations, considering them well-reasoned and thorough. He adopted the Committee’s
findings that explained why the Applicant’s release was justified and
reasonable as his own. However, General Vance disagreed with the Committee’s release
item recommendation and concluded the issue before him was determining the
appropriate release item.
[16]
General Vance reviewed the Applicant’s
background, including his criminal convictions. He observed that all regular
and reserve members of the CAF are subject to the Code of Service Discipline [CSD],
which encompasses the Criminal Code. As a result, an offence committed under
the Criminal Code is also considered to have been committed under the NDA.
[17]
Item 2(a) is the release item that corresponds
to civil convictions resulting from serious offences. Since the Applicant’s
convictions included one indictable offence and two summary offences (which is
not disputed), General Vance found that release item 2(a) was the most accurate
category of why the Applicant was being released. General Vance concluded that
it would be negligent and careless to use a less accurate release item.
III.
Issues
[18]
The issues before me are:
- Was the decision
to release the Applicant under item 2(a) reasonable?
- Did the Chief of
the Defence Staff breach procedural fairness?
IV.
Standard of Review
[19]
The standard of review for procedural fairness
is correctness, whereas reasonableness is the standard of review for decisions
made by the CDS as final authority in grievances (Zimmerman v Canada (AG),
2011 FCA 43 at para 21; Moodie v Canada (AG), 2015 FCA 87 at paras 50-51).
V.
Analysis
A.
The Law
[20]
A decision maker is to choose between these
categories of release. The choices are governed by the Canadian Forces
Administrative Order [CFAO] 15-2 (Release—Regular Force) Annex A (Specific
Release Policies) (in the decision it is also called “Special”) CFAO 15-2 Annex
A at paragraph 4 states:
It is emphasized that the assignment of a
release item occurs after the reason for release has been determined, and the
purpose of such release items is to identify, for administrative purposes, the
reason for, and conditions of, each release. Release item should not be applied
to achieve a desired result, such as a form of punishment, a means of depriving
a member of rehabilitation benefits, a means of attaching a stigma to a
member’s release, or a means of attempting to increase a member’s terminal
benefits.
[21]
CFAO 15-2 Annex A states at paragraphs 20-21:
20. Item 2 provides for release for
unsatisfactory service. The special instructions in the table to QR&O 15.01
contain guidance for the selection of the appropriate release item (2a or 2b).
21. An item 2 release carries a lifelong
stigma for the individual and could seriously jeopardize the member’s entire
future. Therefore, before recommending such a release the CO shall ensure the
nature of the circumstances which led to release action being initiated are
indeed sufficiently serious to warrant release under this item. When the CO
recommends such a release, action shall be taken in accordance with paragraphs
12 and 13, except where a member has been imprisoned by a civil court. Where
there is any doubt as to the degree of seriousness of the circumstances, the
member should be given the benefit of the doubt and should be released under
item 5(f).
[22]
Definitions of items 2(a) and 5(f) under article
15.01 QR&O:
2(a) “Unsatisfactory
Conduct” Applies to the release of an officer or non-commissioned member:
- by reason of unsatisfactory civil conduct, or conviction of an offence by a
civil court, of a serious nature not related to the performance of his duties
but reflecting discredit on the Service.
5(f) “Unsuitable for Further Service” Applies
to the release of an officer or non-commissioned member: - who, either wholly
or chiefly because of factors within his control, develops personal weakness or
behaviour or has domestic or other personal problems that seriously impair his
usefulness to or impose an excessive administrative burden on the Canadian
Forces
B.
Preliminary
[23]
Several preliminary issues arose with this
hearing. Prothonotary Lafrenière (as he then was) dealt with some of these preliminary
issues in an order where he struck an expert opinion affidavit filed by the
Applicant (Wagner v Canada (AG), 2016 FC 412). Four other preliminary
issues were dealt with in a hearing before me.
[24]
The first preliminary issue is the admissibility
of specific paragraphs in the Applicant’s affidavit. The Respondent asked to
strike evidence found in paragraphs 4, 5, 8, 9, 11, 12, 13, and 16-34 of the Affidavit
of Cory Wagner. The Respondent presented the argument in their memorandum of
fact and law at paragraphs 44-59, and the parties provided argument at the
hearing.
[25]
The main argument to support the striking is
that those paragraphs contain evidence not before the decision maker. Further
argument was presented that the affidavit evidence was unreliable. The
Applicant did not present opposing arguments in a reply memorandum on this
issue but disagreed that it should be struck.
[26]
It seems prudent to remind the parties that I am
not doing a de novo hearing as General Vance did. As this is a judicial
review application, it is inappropriate for the Applicant to now supplement his
argument with material that was not before the decision maker. Although there
is an exception to this principle, none of the evidence not before the decision
maker meets the exception principles (Ochapowace First Nation v Canada (AG),
2007 FC 920; Smith v Canada, 2001 FCA 86).
[27]
I will disregard the portions of the Affidavit
of Cory Wagner that relate to material or evidence that was not before the
decision maker.
[28]
The second preliminary issue is the
admissibility of the pre-sentence report [PSR] date stamped April 15, 2013, used
by the Provincial Court of British Columbia for the Applicant’s sentencing. Although
the PSR was in the Applicant’s control since at least his sentencing in April 2013,
he chose to not file this material in his submissions to General Vance or any
other submissions filed at other levels of grievance. I made the ruling at the
hearing that I would not consider it or accept it for filing at the hearing and
would proceed on the Certified Tribunal Record [CTR].
[29]
The third preliminary issue is in regards to the
format of the CTR. The Applicant had a concern that the index of the CTR provided
by the Respondent had some items bolded. Though the Applicant agreed those are
important documents, he wanted the Court to be aware he would have identified
key documents as those found at pages 245, 432, 436-438, 450, and 475. I note
that I have considered the entire CTR, regardless of whether the item was
bolded or not.
[30]
The fourth preliminary issue is the accuracy of the
style of cause. The Respondent requested the Court amend the style of cause to
comply with article 15.09(2) QR&O, which sets out the rules for using rank
title and retired status. According to the QR&O, both are reserved for CAF
members that have served not less than 10 years of which the Applicant did not
serve 10 years. The Applicant had no arguments regarding this matter.
[31]
I will amend the style of cause and replace
Private (Ret’d) Cory D. Wagner with Cory D. Wagner.
C.
Applicant’s Position:
(1)
FASD Treatment
[32]
At the hearing the Applicant set out six (6) key
points of disagreement with the Respondent because of not being “reasonable, correct, or fair”:
- The final
authority refused to consider the civil judge’s finding of the Applicant’s
FASD;
- The final
authority refused to consider the CAF’s own advice from Dr. Patterson that
the Applicant suffers from FASD and a likely relationship between the FASD
and the Applicant’s errors;
- The final
authority dismissing any prejudice to the Applicant after a 2(a)
termination because the 2(a) reason would only be known to the Applicant;
- The final
authority’s failure to address parity or consistency which was raised by the
Applicant;
- The admissibly
of the Affidavit of Cory Wagner; and
- The remedy
sought.
[33]
The Court deals with these areas of dispute
under the issues of whether the decision maker was unreasonable or whether the
Applicant suffered procedural unfairness.
(2)
Unreasonable
[34]
The Applicant argues that the CAF has been inconsistent
in its recognition of his FASD and states that General Vance’s assertion that
there is “no evidence” of his FASD is wrong for
two reasons. First, he argued that during the sentencing hearing Judge Gouge
made a finding of fact that he had FASD. Second, he argued Major Patterson’s
Medical Advice Letter explicitly concluded that it was her opinion that “[Cory] Wagner’s medical illness may have played a factor in
his misconduct.” Since both the sentencing transcript and Major
Patterson’s letter were before General Vance while he made his decision, the
Applicant argues General Vance could not reasonably assert there is no evidence
of his FASD.
[35]
I disagree with the Applicant and find the
decision is reasonable. General Vance gave
intelligible reasons for disagreeing with the Committee’s recommendation. In
particular, General Vance noted that:
a)
The Applicant’s grievance file did not contain
proof of a mitigating medical condition;
b)
The Applicant’s submissions asserted he had a
medical condition that had affected his criminal conduct, but failed to explain
how;
c)
The Committee, Major Patterson, and the Court
who sentenced the Applicant for his crimes had pre-supposed the existence of a
medical condition;
d)
The Applicant had not availed himself of the
opportunity to either demonstrate that he had a medical condition or to show
how it had affected his actions even after being advised in the Final Synopsis
that his grievance file did not contain proof of these assertions;
e)
The Applicant had committed a serious civil
offence, having been convicted of an indictable offence and two summary
conviction offences;
f)
The commission of those offences was within the
Applicant’s control;
g)
Release items are not forms of punishment;
h)
An inappropriate release item cannot be used
merely to provide a CAF member with certain benefits;
i)
A 2(a) release would not deal a permanent,
crippling blow to the Applicant’s future success and ability to secure
employment;
[36]
During submissions, the Applicant made several inaccurate
assertions that affect whether the decision was reasonable or not. One of the
oft repeated errors is the assertion that Judge Gouge made a finding of fact
regarding the Applicant’s alleged FASD. This is an error because a sentencing
judge makes comments—not findings of fact—when pronouncing a sentence. A Judge
in pronouncing a sentence addresses the aggravating and mitigating factors in
the Crown and the accused’s counsel’s submissions. Judge Gouge in the sentencing
decision rendered from the bench said: “Mr. Wagner,
despite your comments, in considering sentence, I do not ignore the fetal
alcohol issue…” Judge Gouge did not make a finding of fact and only made
the observation in response to a submission. There is no finding in the
sentencing transcript that the Applicant suffers a disability as a result of
FASD or that he was ever diagnosed with FASD.
[37]
The Applicant did not file a copy of the
transcript of the submissions of the Crown and defence at the Provincial Court
hearing to the lower level decision makers nor to General Vance. The Applicant
also did not file any documents such as a medical report with diagnosis in any
his submissions. The PSR was not before the decision maker and, as I ruled
earlier, it was not accepted for filing at the hearing. Furthermore, even if he
suffers from FASD there is no evidence that it contributed to the commission of
his offences.
[38]
Contrary to the Applicant’s assertion, General
Vance did not ignore any of the evidence. In fact, General Vance cites the
criminal sentencing reasons and Major Patterson in his reasons. What remains
unclear is how the Applicant knows he has FASD? What is the extent of his
disability, if any? How did FASD affect him in committing his offences? The
Applicant bears the onus of proof about the existence of his medical condition
and he chose not to provide a response to the concerns expressed in the Final
Synopsis. In addition, Major Patterson’s report does not say the Applicant is
diagnosed with FASD. Instead the report questions whether he ever engaged in
treatment for FASD and provided general advice about persons with FASD. The
report does not indicate Major Patterson ever even examined him as it is a
response to questions asked of her.
[39]
I cannot agree with the Applicant that there was
a reviewable error regarding General Vance’s treatment of the Applicant’s FASD
without medical proof of such a diagnosis. The CTR does not contain any medical
records provided by the Applicant or a test provided by the Respondent that
indicates he has FASD. The Applicant was represented by counsel throughout the process
and his counsel filed submissions on his behalf. The Applicant had the PSR and
his own medical records in his control, but they were never put before the
decision makers. Therefore, no evidence was ignored and the decision is
reasonable.
(3)
Medical Assessment-Accommodation
[40]
The Applicant argues that several errors were
made stemming from the CAF’s knowledge his FASD was at issue in his release.
These errors are: 1) the CAF did not medically assess his alleged FASD; 2) the
records on which Major Patterson relied for her opinion are not part of the CTR
and have never been disclosed to the Applicant; and 3) the Applicant’s full CAF
medical records, including a record of his medical assessment prior to release,
does not form part of the CTR.
[41]
These arguments must fail because the CAF
released the Applicant due to criminality, not because of a medical disability.
This means that General Vance did not have the Applicant's CAF medical file because
that is not why he was being released as it would have been irrelevant.
[42]
Furthermore, while the CTR does not contain the
Applicant’s medical file, it does contain email conversations where superiors
considered if the Applicant had a Medical Employment Limitation [MEL] and found
he did not. The superiors commented that the Applicant completed his training
and nothing in his records indicated that there may be a diagnosis of FASD that
might have lead them to assess and accommodate him.
[43]
Contrary to the Applicant’s assertion, the CTR
does contain Health Canada information relied on, and it is found at pages 055-062
(MGERC 000467-MGERC 000460). Considering that the only mention in the
Applicant’s Course Report is that he is uncoordinated (which contributes to him
having to work on his drills) and that the Health Canada information does not
say that being uncoordinated is related to FASD, it was not unreasonable that the
CFA did not find he had an MEL related to FASD or that he had been diagnosed
with FASD. Again, the argument has no basis as the Applicant was not released
from the CAF for medical reasons but because of the serious indictable and
summary criminal offices he was convicted of.
(4)
Procedural Unfairness
[44]
The Applicant argues he was denied procedural
fairness because he was never informed of what would constitute “sufficient evidence” to prove his FASD. As a result,
he thought the findings by Judge Gouge and Major Patterson would be sufficient.
He says that Judge Gouge’s findings are sufficient evidence because his FASD is
a finding of fact and findings of fact cannot be disregarded. The Applicant submitted
that General Vance unnecessarily distinguished Judge Gouge’s use of “fetal alcohol issues” in his reasons delivered from
the bench rather than referencing a diagnosis of FASD. The Applicant says that General
Vance’s conclusion that he ceased to claim FASD is in flagrant disregard of his
June 11, 2015 written representations.
[45]
The Applicant made six (6) written submissions
in opposition to an item 2(a) release as follows:
- On July 30, 2013, to his Unit Commanding
Officer;
- On September 2, 2013, to his Commanding
Officer;
- On January 6, 2014, to the Commanding
Officer of Land Forces Western Training Area;
- On March 6, 2014, to the Director Military
Careers, Policy and Grievances;
- On July 11, 2014, to the Director General
Canadian Forces Grievance Authority; and
- On June 11, 2015, to the Director General
of the Canadian Forces Grievance Authority.
[46]
The Applicant is entitled to procedural
fairness. This requirement was met during General Vance’s de novo review
when the represented Applicant was provided with certain documents once it was
found he did not have them, and then provided time to give written submissions.
As I have mentioned several times, by not providing the submissions of defence
and the Crown with the sentencing transcript, and by not providing actual
evidence of FASD, the information contained in these materials was not before
the decision maker. As previously stated above it cannot be said that Judge
Gouge made a finding of fact that the Applicant has FASD when he rendered the
sentence. If there is a diagnosis then it should have been before the decision
maker. Therefore, the Applicant’s argument must fail as there is no evidence to
support the factual basis that is being used to form his argument. There was no
reviewable error.
[47]
The Applicant signed a consent to be released
under item 5(f), which he argues created a reasonable expectation that the CAF
would promptly release him under that item. He further argues that the CAF
unreasonably delayed his release and breached a principle of natural justice
and procedural fairness by deliberately prolonging his service to inflict a “dishonourable release.”
[48]
The CTR shows the progression of the matter.
Initially, before the Applicant was criminally convicted and sentenced, the CAF
decided to terminate his service. At that time the CAF asked the Applicant to
sign the consent to release form. The CAF then decided to wait until his
sentencing before they proceeded. The Applicant, as is his right, went through
the process and at no time did the CAF behaviour somehow create a reasonable
expectation that somehow breached his procedural fairness. In fact, the
Applicant did receive the required procedural fairness because he was allowed
the opportunity to present all the submissions and arguments regarding what
section his service should be terminated under.
(5)
Concealing “Dishonourable
discharge”
[49]
Throughout this process, the Applicant used the
term “dishonourably discharged” to describe his
release under item 2(a). Several issues and what the Applicant sees as key
points of disagreement all relate to the use of the term. A brief summary of
the related arguments is that: a) General Vance’s decision states the Applicant
can conceal his dishonourable discharge from future employers; b) the stigma
associated with a dishonourable discharge makes it very difficult to be
employable; c) a dishonourable discharge means he cannot re-enlist with the
CAF; d) a dishonourable discharge and the associated stigma amounts to a second
punishment in addition to the sentence he received under the civil Criminal
Code.
[50]
The terms “dishonourable
release” and “dishonourable discharge” are
American military terms, and are not used in the applicable administrative
regime or do they apply to the Applicant’s release category. Rather, his record
of service notes that his service was terminated and the reason for his release
is “Unsatisfactory Conduct.”
[51]
The Applicant’s release was based on an
administrative review and is not a punishment (CFAO 15-2, Annex A at para 4).
That the administrative release is not a punishment is made evident by the fact
the release process and the discipline process are set out under different
parts of the NDA. While a release is based on an administrative review and is
set out under Part II of the NDA, disciplinary measures are set out in the CSD
under Part III of the NDA.
[52]
The Applicant’s service was terminated under the
administrative review process and he was not disciplined under the CSD. In
addition, the Applicant’s criminal conduct was unrelated to his service so he
was not convicted of any service related offence under the NDA or under
military law. Military personnel are subject to the Criminal Code and therefore
the Applicant received his sentence in a civil court. An offence committed in
the course of a member’s service applies to sentences under NDA section 139(1),
which are sentences authorized after a court martial.
[53]
Clearly, in this case, the convictions were not
committed in relation to his service, he was not charged with an offence under
the NDA, he was not court martialed, and there was no service tribunal. The
Applicant’s criminal convictions are the reason for his release from the CAF,
and this release falls under Part II of the NDA, not Part III. A release item
is not a punishment, and therefore the Applicant has not received a second
punishment.
[54]
General Vance’s statement that the 2(a) release
item is only known to the Applicant:
You should have ample opportunity to forge a
career other than with the federal government. Your 2(a) release item is known
only to you. Therefore, I do not agree with your assertion that this release
item has dealt a crippling blow to your future success
refers to the fact it is open to the
Applicant to refuse to answer an employer if questioned about his release or to
answer honestly that he was released due to unsatisfactory conduct. I would
find the possibility of a prospective employer being more concerned about his
criminal convictions than the administrative release item he was released from
the army. It is inappropriate to blame the CAF if he has difficulty obtaining
work due to his criminal record.
[55]
General Vance’s reasons demonstrate he did not
have a doubt about the seriousness of the circumstances. He considered the
Applicant’s submissions on FASD as well as the potential impact of an item 2(a)
release on his future. However, he also found the Applicant’s poor judgement
could pose a danger to the public and other CAF members. The Applicant’s
choices ultimately resulted in his release and General Vance’s decision that item
2(a) release most accurately reflects the Applicant’s circumstances was
reasonable.
[56]
I find the decision exhibits justification,
transparency and intelligibility within the decision making process and also
that the decision is within the range of possible, acceptable outcomes,
defensible in fact and law (Dunsmuir v New Brunswick, 2008 SCC 9; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12). The Application is
dismissed.
[57]
As the Applicant was unsuccessful, I will not
deal with whether the remedy he sought would have been appropriate.
VI.
Costs
[58]
At the hearing I asked the parties to provide
submissions on lump sum costs. The parties post hearing provided written
submissions. The Applicant asked for $3,500 which was the “high end of default Column III on 4 line items” and
provided a draft bill of costs. The Applicant argued that this is a modest sum
given the “nearly 4-year history of this matter and the
overwhelming inequality of resources between the parties given Cory Wagner’s
impecuniosity.”
[59]
In the Respondent’s submissions they sought a
lump sum range of $2000 to $2500, inclusive of disbursements, and based the
assessment on Federal Court tariff under Columns I to III not including the
amounts for motions already dealt with. The Respondent indicated that they
would consent to costs in the amount up to $3,000 if they were unsuccessful.
[60]
I thank both counsels for their fair and
equitable submissions related to costs. I am well aware of the Applicant’s
impecuniosity as well as the amount of time and energy spent on this matter. Because
of the impecuniosity of the Applicant, I will order the Applicant to pay a lump
sum award of $500.00 to the Respondent.
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