Date: 20220803

Docket: T-578-22

Citation: 2022 FC 1153

REASONS FOR ASSESSMENT

GARNET MORGAN, Assessment Officer

I. Background

[1] This assessment of costs is further to the Applicant filing a Notice of Discontinuance on April 12, 2022, which wholly discontinued the Applicant’s judicial review proceeding against the Respondents.

[2] Rules 402 and 412 of the Federal Courts Rules, SOR/98-106 (FCR), state the following regarding discontinued proceedings and costs:

402. Costs of discontinuance or abandonment - Unless otherwise ordered by the Court or agreed by the parties, a party against whom an action, application or appeal has been discontinued or against whom a motion has been abandoned is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party.

[…]

412. Costs of discontinued proceeding - The costs of a proceeding that is discontinued may be assessed on the filing of the notice of discontinuance.

[3] Further to my review of Rules 402 and 412, in the absence of a Court decision specifying any particulars regarding the Applicant’s discontinued judicial review proceeding, costs will be assessed in accordance with Rule 407 of the FCR, which states the following:

407. Assessment according to Tariff B - Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B.

[4] On April 20, 2022, the Respondent, Tataskweyak Cree Nation, filed a Bill of Costs and a covering letter dated April 20, 2022, which initiated Tataskweyak Cree Nation’s request for an assessment of costs.

[5] Hereafter in these Reasons, Tataskweyak Cree Nation, will be referred to as the Respondent.

[6] On April 25, 2022, a direction was issued to the parties regarding the conduct and filing of additional documents for the assessment of costs. Subsequent to the issuance of the direction, the court record shows that the parties acknowledged receipt of the direction and that no additional documents were filed by the parties. Therefore, the only document that has been filed by the parties for this assessment of costs is the Respondent’s Bill of Costs, filed on April 20, 2022.

II. Preliminary Issue

[7] As noted earlier in these Reasons, the Applicant did not file any documents in response to the Respondent’s request for an assessment of costs. The absence of responding documents from the Applicant has left the Respondent’s Bill of Costs substantially unopposed. In Dahl v Canada, 2007 FC 192, at paragraph 2, the Assessment Officer stated the following regarding the absence of relevant representations for assessments of costs:

2. Effectively, the absence of any relevant representations by the Plaintiff, which could assist me in identifying issues and making a decision, leaves the bill 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 the bill of costs.

[8] In addition to the Dahl decision, in Carlile v Canada, [1997] F.C.J. No. 885, at paragraph 26, the Assessment Officer stated the following regarding having limited material for assessments of costs:

26. […] Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. This presumes a subjective role for the Taxing Officer in the process of taxation. My Reasons dated November 2, 1994, in T-1422-90: Youssef Hanna Dableh v. Ontario Hydro cite, [1994] F.C.J. No. 1810, at page 4, a series of Reasons for Taxation shaping the approach to taxation of costs. Dableh was appealed but the appeal was dismissed with Reasons by the Associate Chief Justice dated April 7, 1995, [1995] F.C.J. No. 551. I have considered disbursements in these Bills of Costs in a manner consistent with these various decisions. Further, Phipson On Evidence, Fourteenth Edition (London: Sweet & Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars as the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donations of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd. […]

[9] Although there is an absence of responding documents from the Applicant for the assessment of the Respondent’s costs, as an Assessment Officer, I still have an obligation to ensure that any claims that are allowed are not “unnecessary or unreasonable.” Utilizing the Dahl and Carlile decisions as guidelines, I will review the court record, the FCR and any relevant jurisprudence, in addition to the Respondent’s assessment of costs documents to ensure that any costs that are allowed were necessary and are reasonable.

III. Assessable Services

[10] The Respondent has claimed 17 units for assessable services, for a total dollar amount of $3,046.00, which is inclusive of taxes.

[11] I have reviewed the Respondent’s assessment of costs documents in conjunction with the court record, the FCR, and any relevant jurisprudence and I have determined that the assessable services claimed by the Respondent for Items 25 and 26 can be allowed as claimed. I found the services performed to be necessary for the litigation of this court file and that the amounts claimed are reasonable. Therefore, 1 unit is allowed for Item 25 and 3 units are allowed for Item 26. The Respondent’s claims for Items 5, 13(a) and 15 have some issues to look into and as a result, they will be assessed in more detail below.

[12] The Respondent has claimed 5 units for Item 5; 3 units for Item 13(a); and 5 units for Item 15. The first claim, which is for Item 5, is for the “[p]reparation and filing of Respondent / Moving Party’s Notice of Motion to Strike Applicant’s Application for Judicial Review and supporting affidavit, filed on April 8th, 2022.” The second claim, which is for Item 13(a), is for the “[p]reparation for hearing and correspondence with Applicant’s counsel in relation to Respondent’s Motion to Strike.” Lastly, the third claim, which is for Item 15, is for the “[p]reparation and filing of Respondent / Moving Party’s Written Representations.”

[13] The Respondent’s claims for Items 5, 13(a) and 15, which are itemized in the Respondent’s Bill of Costs, are all related to the Respondent’s motion to strike the Applicant’s application for judicial review that was filed on April 8, 2022. Further to my review of these claims, Rule 402 of the FCR, states the following regarding discontinuances or the abandonment of motions and costs:

402. Costs of discontinuance or abandonment - Unless otherwise ordered by the Court or agreed by the parties, a party against whom an action, application or appeal has been discontinued or against whom a motion has been abandoned is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party.

[Underline added for emphasis]

[14] Also, Rule 411 of the FCR states the following regarding costs for abandoned motions:

411. Costs of abandoned motion - The costs of a motion that is abandoned or deemed to be abandoned may be assessed on the filing of

(a) the notice of motion, together with an affidavit stating that the notice was not filed within the prescribed time or that the moving party did not appear at the hearing of the motion; or

(b) where a notice of abandonment was served, the notice of abandonment.

[Underline added for emphasis]

[15] In addition, Rule 370 of the FCR states the following regarding abandoned motions:

370(1) Abandonment of motion - A party who brings a motion may abandon it by serving and filing a notice of abandonment in Form 370.

(2) Deemed abandonment - Where a moving party fails to appear at the hearing of a motion without serving and filing a notice of abandonment, it is deemed to have abandoned the motion.

[16] Rules 370, 402 and 411 refer to the abandonment of the moving party’s motion. It is subsequent to a moving party abandoning a motion that a responding party would be entitled to costs. This is different from the motion in this particular file, as the moving party (the Respondent) did not abandon their motion. The Applicant discontinued the judicial review proceeding before the Respondent’s motion was heard and therefore there is no Court decision awarding costs for this particular motion. In Tursunbayev v Canada (Minister of Public Safety and Emergency Preparedness), 2019 FC 457, at paragraph 39, the Court stated the following regarding decisions that are silent as to costs:

39. As the Defendants point out, apart from the Court's order of November 24, 2016 and the eventual supplementary costs order of March 6, 2017, which the Defendants have satisfied, all of my orders in these proceedings have either expressly awarded no costs or have been silent as to costs. This is because in the instances now raised before me the Plaintiff did not seek costs (either in writing or orally) so that costs were not an issue I was asked to address. As I understand the jurisprudence of this Court, I cannot now re-visit my earlier orders that were silent as to costs. In Sauve v Canada, 2015 FC 181, Justice Barnes had the following to say on point:

[5] I am also concerned about the Defendants' claims to costs in connection with a variety of motions that were filed by one or the other dating back as far as 2007.

[6] Almost all of the early motions in this proceeding were concluded by Orders where no award of costs was made. It is not open to the Court to revisit those matters and to award costs where none were ordered at the time: see Exeter v Canada, 2013 FCA 134 at para 14.

[17] In addition, in Canada v Uzoni, 2006 FCA 344, at paragraph 4, the Assessment Officer stated the following with regards to motions and costs:

4. The Respondent has requested 4 units for its item 4 (Preparation and filing of an uncontested motion, including all materials for late filing of Notice of Appearance). I have reviewed the Order of the Federal Court of Appeal dated March 22, 2005, in which the Court granted the Respondent's motion for an extension of time to file its Notice of Appearance. However, the same Order of the Federal Court of Appeal made no reference whatsoever to the issue of costs associated with the Respondent's motion. It is a well established principle that costs are at the respective Court's discretion and where an order is silent with respect to costs, it implies there is no visible exercise of the respective Court's discretion under Rule 400(1). Reference may also be made to a relevant passage in Mark M. Orkin, Q.C., The Law of Costs (2nd Ed.), 2004, paragraph 105.7:

... Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at a trial with no mention of costs, it is as though the judge had said that he "saw fit to make no order as to costs"...

Similarly, I rely on Kibale v. Canada (Secretary of State), [1991] F.C.J. No. 15, [1991] 2 F.C. D-9 which reflects the same sentiment:

If an order is silent as to costs, no costs are awarded.

[18] Upon my review of the Tursunbayev and Uzoni decisions, the Respondent’s Bill of Costs, and Rules 370, 402 and 411 of the FCR, I find that as an Assessment Officer, I do not have the authority to allow the claims submitted under Items 5, 13(a), and 15. The Respondent’s motion was not abandoned by the moving party and there is no Court decision awarding costs for this motion. I will also note that Items 13 and 15 do not apply to claims for motions, and apply to trials and judicial review hearings. The only claim that was accurately submitted by the Respondent was for Item 5 but I have determined that this claim cannot be allowed, in addition to Items 13(a), 15, pursuant to the FCR and the aforementioned jurisprudence.

[19] Further to my determination that Item 5 cannot be allowed, the jurisprudence in Tursunbayev and Uzoni provide guidance regarding Court decisions that are silent as to costs, but they do not provide guidance regarding motions that were not disposed of by the Court and were not abandoned by the moving party when an underlying court proceeding has been discontinued. I have considered the Respondent’s request for costs outside of the parameters of Item 5, in conjunction with the court record and Rules 402 and 412 of the FCR, and I find that there may be circumstances whereby a party could possibly be indemnified for the preparation and filing of a motion that was not disposed of by the Court and that was not abandoned by the moving party, depending on the facts pertaining to a particular file.

[20] For this particular file, the court record shows that the Respondent filed its moving party Motion Record on April 8, 2022, and that the Applicant did not file a responding Motion Record and discontinued the underlying judicial review proceeding on April 12, 2022, four days after the Respondent’s Motion Record was filed. The court record shows that the Respondent performed a considerable amount of work to prepare the motion to strike the Applicant’s application for judicial review, which includes a supporting affidavit, and Written Representations that are 13 pages in length.

[21] My review of the court record supports the allowance of some indemnification for the work performed by the Respondent in relation to the motion to strike the Applicant’s application for judicial review. In Mitchell v Canada, 2003 FCA 386, at paragraph 12, the Assessment Officer stated the following regarding the positive application of costs provisions:

12. The Appellants are correct that the wording for item 27 does not generally fetter discretion. However, that discretion, as for other items in bills of costs, is still fettered by reasonable necessity and the limits of an award of costs. Consistent with Rule 3, and with my sentiment in Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd., [1994] F.C.J. No. 2012 (A.O.), at para. 10 that the "best way to administer the scheme of costs in litigation is to choose positive applications of its provisions as opposed to narrower and negative ones", application of discretion should be part of a reasoned process to achieve a result on assessment which is equitable for both sides. […]

[22] In addition, Rule 3 of the FCR, states the following:

3. General principle - These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.

[23] Utilizing the Mitchell and Carlile (supra) decisions and Rule 3 of the FCR as guidelines, I have determined that assessing the Respondent’s claim for the motion to strike under Item 27 is an acceptable alternative to assessing the claim under Item 5 and will allow for a positive application of the costs provisions instead of a narrower one, as “a result of zero dollars at taxation would be absurd.” I have considered the factors listed under Rule 400(3) of the FCR, which an Assessment Officer can consider in an assessment of costs pursuant to Rule 409, such as, (a) the result of the proceeding; (g) the amount of work; and (i) any conduct that tended to shorten or unnecessarily lengthen the duration of the proceeding, in addition to factor (o) any other matter that it considers relevant. Further to my review of the Respondent’s Bill of Costs in conjunction with the court record, the FCR and the aforementioned jurisprudence, I have determined that it is reasonable to allow 2 units under Item 27 for the work performed by the Respondent in relation to the motion to strike the Applicant’s application for judicial review.

[24] A total of 6 units have been allowed for the Respondent’s assessable services for a total dollar amount of $1,075.20, inclusive of taxes.

IV. Disbursements

[25] The Respondent did not submit any claims for disbursements.

V. Conclusion

[26] For the above Reasons, the Respondent, Tataskweyak Cree Nation’s Bill of Costs is assessed and allowed in the total amount of $1,075.20, payable by the Applicant to Tataskweyak Cree Nation. A Certificate of Assessment will also be issued.

“Garnet Morgan”

Toronto, Ontario

August 3, 2022

FEDERAL COURT

SOLICITORS OF RECORD

WRITTEN SUBMISSIONS BY:

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